Opinion
8 Div. 927.
January 23, 1958.
Appeal from the Circuit Court, Madison County, E. H. Parsons, J.
M. U. Griffin, II, Huntsville, for appellant.
Merely spanking a wife after pushing her down on the floor or slapping her twice in the course of a domestic quarrel is not cruelty under the law when such acts are not attended with danger to the wife's life or health and there is no conduct placing her in reasonable apprehension of violence attended with danger to her life or health. Ussery v. Ussery, 259 Ala. 194, 66 So.2d 182; Jones v. Jones, 189 Ala. 286, 66 So. 4; Murray v. Murray, 238 Ala. 158, 189 So. 877; Campbell v. Campbell, 252 Ala. 487, 41 So.2d 185. A single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation. 27 C.J.S. Divorce § 61, p. 615; Collins v. Collins, 194 La. 446, 193 So. 702; Huffine v. Huffine, Ohio Com. Pl., 74 N.E.2d 764; Harbin v. Harbin, 249 Ala. 616, 32 So.2d 537; 17 Am.Jur. 410, § 223.
Joe L. Payne, Huntsville, for appellee.
The evidence supported the decree of divorce on ground of cruelty. Williams v. Williams, 239 Ala. 162, 194 So. 507. Condonation means willing continuance of cohabitation, a living together in the same place. Brown v. Brown, 219 Ala. 104, 121 So. 386; Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185; 27 C.J.S. Divorce § 60, p. 612; Dion v. Dion, 128 Conn. 416, 23 A.2d 314; Teal v. Teal, 324 Ill. 207, 155 N.E. 28; Drew v. Drew, 250 Mass. 41, 144 N.E. 763; Ramsay v. Ramsay, 69 Nev. 176, 244 P.2d 381. Mere proof of two acts of intercourse during separation does not necessarily establish condonation. Miles v. Miles, 131 W. Va. 513, 48 S.E.2d 669; Weber v. Weber, 195 Mo. App. 126, 189 S.W. 577; Garton v. Garton, Mo. App., 246 S.W.2d 832; Cox v. Cox, 52 Hun 613, 5 N.Y.S. 367; Dion v. Dion, supra; 27 C.J.S. Divorce § 60, p. 611.
This is an appeal from a decree of the equity court granting the complainant Helen S Cox (appellee) a divorce from Robert N. Cox (appellant) on ground of cruelty. The case was tried orally before the court.
The assignments of error attack the decree on two grounds, (1) that the evidence is insufficient to show cruelty and (2) that the acts of the appellant were condoned by the appellee.
No good purpose can be served by setting out the details of the unfortunate course of events that caused the separation of the parties. Suffice it to say that upon a consideration of the evidence, we see no reason to set aside the finding of the lower court.
I. The acts of the appellant in grabbing the appellee in anger, hitting her so hard that she was knocked to the floor, then twisting her around and spanking her a number of times, causing her to become hysterical, are acts of violence committed on the person of the appellee, attended with danger to life or health. Williams v. Williams, 239 Ala. 162, 194 So. 507; George v. George, 255 Ala. 190, 50 So.2d 744; § 22, Title 34, Code of 1940. Appellant then took the appellee to the home of her parents where she has resided ever since.
II. The separation took place on January 12, 1957. This suit was filed May 23, 1957. Twice during this period appellee submitted to intercourse with appellant. There was never any intention on the part of the appellee to forgive the appellant or to resume cohabitation with him. In Brown v. Brown, 219 Ala. 104, 121 So. 386, 387, this court defined condonation as "the willing continuance of cohabitation, a living together in the same place." See also Harbin v. Harbin, 249 Ala. 616, 32 So.2d 537. Here proof of two acts of intercourse during the separation of the parties does not necessarily establish condonation, where there is no intention to forgive and to resume marital relations. See Annotations 32 A.L.R.2d 141; Campbell v. Campbell, 246 Ala. 107, 19 So.2d 354, 155 A.L.R. 130.
The court was not in error in finding that the appellee had not condoned the acts of cruelty committed by the appellant. Phillips v. Phillips, 221 Ala. 455, 129 So. 3; Miles v. Miles, 131 W. Va. 513, 48 S.E.2d 669; Weber v. Weber, Mo. App., 189 S.W. 577; Dion v. Dion, 128 Conn. 416, 23 A.2d 314.
The decree of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and COLEMAN, JJ., concur.