Opinion
March 28, 1949.
1. Divorce — cruel and inhuman treatment.
Refusal of wife to come to the place of residence selected by the husband does not constitute cruel and inhuman treatment, nor is such a ground for divorce established by the refusal of the wife to deliver the children to the husband as provided by a prior written agreement between them.
2. Divorce — condonation.
When husband and wife had separated and had begun legal proceedings each against the other and thereafter they made a written agreement by which they settled all their differences, and each expressly condoned all acts on the part of the other which caused their differences, and thereupon for a time the cohabited as husband and wife, the agreement and the subsequent conduct thereunder operated to condone and forgive all alleged acts of cruelty occurring prior to the date of the agreement, and, no acts of cruelty having occurred subsequent to the agreement, neither the husband nor the wife could procure a divorce on grounds of cruel and inhuman treatment alleged to have occurred prior to the agreement.
3. Divorce — refusal of wife to live with husband pursuant to agreement, by which agreement all previous acts had been condoned — effect of refusal.
The refusal of the wife to come to the home selected by the husband, as provided for in a written agreement between them, and by which agreement all acts which had therefore caused any differences between them were expressly condoned, did not operate to revive and to make available against her charges of cruel and inhuman treatment based on facts which occurred prior to the agreement.
Headnotes as approved by Roberds, J.
APPEAL from the chancery court of Washington County, J.L. WILLIAMS, Chancellor.
D.S. Satterwhite and James B. Smiley, for appellant.
1. The law authorizing divorces for certain causes requires a strict compliance with its provisions. Humber v. Humber, 109 Miss. 216, 68 So. 161.
2. To constitute "cruelty" within the divorce law, where there is no personal violence, the misconduct must be such as will impair the health or create a reasonable apprehension of bodily harm. Humber v. Humber, supra; Russell v. Russell, 157 Miss. 425, 128 So. 270; Price v. Price, 179 So. 855.
3. A mere conclusion of cruelty on the part of complainant in his bill of divorce, without alleged facts or sufficient proof of facts showing misconduct of such a nature as to impair his health or create a reasonable apprehension of bodily harm, is demurrable and will not support a decree of divorce. Russell v. Russell, 157 Miss. 425, 128 So. 270.
4. Books and records of complainant, which reflect his income and net worth are material evidence which should be required to be produced upon motion duly and seasonably made, in an action for divorce where alimony and attorneys' fees are claimed, and especially where there is a crossbill alleging the existence of jointly owned property and asking a division and distribution thereof, where the value of said property, and the husband's net worth and income are in dispute. Winslow v. State, 9 So. 728. State ex rel. Franklin A.R. Company v. Allen, 104 La. 301, 29 So. 114.
5. The value of the husband's property, his net worth and his income are pertinent issues in a divorce action where there is a prayer asking divorce and a cross bill by wife seeking a divorce and an accounting and praying for attorneys' fees and alimony and support for herself and minor children in wife's care and custody. Winslow v. State, supra; State ex rel. Franklin A.R. Company v. Allen, supra.
6. A wife is entitled to alimony and attorneys' fees pending appeal even where a decree of divorce is granted to the husband.
7. Alleged acts of misconduct which have been condoned by reconciliation and re-cohabitation cannot be relied upon as grounds for divorce. 27 C.J.S. 616 and 862 (divorce).
Ben Wilkes, for appellee.
We agree with counsel for appellant that "habitually cruel and inhuman treatment", as a ground for divorce in Mississippi, means more than mere incompatibility. We further agree that, under our decisions, before a spouse can obtain a divorce on these grounds, it must be proved that the offending spouse is guilty of such conduct toward the other as amounts to personal violence or, in the absence of personal violence, such conduct as endangers life, limb or health or creates a reasonable apprehension of danger thereto. It is our position that our case falls squarely within the above rule, and that far from being a case of mere incompatibility, this appellee actually feared for his life and safety at the hands of his wife and her relatives and that such fear was reasonable, being based on threats made by them to him on numerous occasions as well as actual acts of personal violence by his wife.
Counsel for appellant contend that if any cruelty was committed upon appellee which would have entitled him to a divorce, such cruelty was condoned by appellee, and this bars him from the relief sought. But that the doctrine of condonation does not apply in a case of this type is well settled in Mississippi, and has been for many years. Manning v. Manning, 160 Miss. 318, 133 So. 673 (1931).
In that case a wife sued her husband for divorce on the grounds of "habitually cruel and inhuman treatment". From a decree awarding her a divorce, the husband appealed on the ground that the wife condoned the cruel treatment. The evidence showed a series of cruel acts toward the wife running over a period of years. The Supreme Court affirmed, saying: "The doctrine of condonation applies to what is generally denominated `non-continuing causes of divorce', consisting of a single act, or a series of acts of misconduct, which might be forgiven as a result of affectionate treatment; but the doctrine is not applicable to causes of divorce of a continuing character. Habitually cruel and inhuman treatment, as a ground for divorce, consists generally of a course of conduct, rather than a single act. In such case, cohabitation after the act of cruelty cannot be considered as a condonation, in the same sense as after an act of adultery. The effort to endure unkind treatment as long as possible is commendable; and the patient endurance by the wife of her husband's ill treatment should not be allowed to weaken her right to a divorce. Her condonation of past acts is impliedly conditioned upon the future good behavior of the husband; and after condonation, if the cruelty is repeated, the right to make the condoned offense a ground for divorce is revived." See also: 9 R.C.L., Sections 171, 172, 176, 177, pages 87 and 88.
We believe that the Manning case correctly states the law of Mississippi pertaining to condonation in cases of this type. In our case, is the appellee to be penalized or condemned for attempting to effect reconciliations with his wife so that he could be with his children and keep the home and family intact? We feel that even if the doctrine of condonation should apply in this case the acts of cruelty by appellant which may have been condoned by appellee, were condoned with the implied condition that she would behave herself in the future, and that her continuing cruelty gave appellee the right to make the condoned cruel acts grounds for a divorce. See also: American Jurisprudence, Vol. 17, page 257.
The question we decide on this appeal is whether a written agreement executed by the parties hereto, March 13, 1947, which the reporter will set out as a footnote and the subsequent acts and relation of the parties, as hereinafter stated, constitute, as between them, a condonation of all prior acts of cruelty alleged by them as cause for divorce, each against the other.
The bill in this cause was filed by the husband, February 5, 1948. It prayed for a divorce from appellant, for an adjudication of the rights and responsibilities of the father and mother as to their two minor children. Sadie Starr answered the bill, and, by cross bill, she prayed for divorce, for custody of the children, for alimony pendente lite, solicitor's fees, and division of the common property. Irwin Starr answered the cross bill. Both the bill and cross bill asserted as ground for divorce cruel and inhuman treatment based upon acts occurring before the foregoing agreement of March 13th. Nor was any proof made of any such act occurring subsequent to that agreement. The chancellor granted divorce to Irwin Starr, awarded the custody of the two children to the Mother, with right in the Father to have their custody at stated times, and required the Father to pay to the Mother $150 per month for support of the children.
Pursuant to execution of said agreement, the pending legal proceedings mentioned therein were dismissed, presumably with prejudice. Also, thereafter, for a time, the parties lived and cohabited together as man and wife. However, not having settled upon and acquired a home, the wife, as was provided in the agreement, carried the children to Birmingham, Alabama, where her people resided. Disagreement arose between the parties as to where they would make their future home, the husband having determined they would live in Greenwood, Mississippi, the wife protesting against making their home in that City. Whether the testimony of Mrs. Starr means her decision not to live in Greenwood is irrevocable is not clear. But, whether it does or does not mean that, the only acts charged as ground of divorce in the pleadings herein, and the only acts shown by the proof, occurring after execution of the foregoing agreement, are the refusal of the wife to come to, and live with, the husband at Greenwood, and her failure to deliver the children to him as provided in the agreement. (Hn 1) These are not such acts as constitute cause for divorce on the ground of cruel and inhuman treatment. At most, such refusal of the wife to come to the abode of the husband, if unjustified and if continued for sufficient time, might constitute desertion on her part. But, the bill and cross bill in this cause ground the right of divorce alone on cruelty, and the acts claimed to constitute cruelty were committed prior to the agreement of March 13th.
It will be noted the agreement is comprehensive and inclusive. It recites differences had arisen between the parties; that each had instituted litigation, which was then pending; that they "have settled their differences and become reconciled, and each expressly condoned any and all acts of the other causing said differences and suits, and have agreed to resume their former relations as husband and wife . . ." It then provides what each shall do in carrying out the agreement, and for residence of the wife and children in Birmingham until a new home is acquired. Lastly, it stipulated the parties would dismiss all pending legal proceedings against the other and that "all charges in said proceedings of either party against the other are expressly condoned and forgiven, and this agreement shall operate as an accord and satisfaction of any and all claims of either party against the other propounded in said proceedings." (Hn 2) We hold that by this agreement, and the subsequent acts and relation of the parties, they forgave and condoned all alleged acts of cruelty occurring prior to such agreement. For a discussion of the legal principles applicable to this question, see 27 C.J.S., Divorce, § 59, page 608, and § 62,
But, appellee says appellant breached the agreement; therefore, there was no condonement of prior wrongs, citing Manning v. Manning, 160 Miss. 318, 133 So. 673. That case is not contrary to our holding here. The ground for divorce there was cruel and inhuman treatment. The condonation, if any, consisted in the wife continuing to live in the same house with the husband for a short time after such alleged treatment. It is not clear whether they cohabited as man and wife. But, the condonation was by conduct — not by agreement. And, the acts of cruelty continued after the asserted condonement — the same kind of acts occurring before the condonement. In the case at bar, the parties, by solemn written agreement, expressly and unconditionally condoned prior acts. These acts constituted the foundation of pending litigation between them. This litigation was dismissed. In the case at bar, appellee says appellant breached the agreement by refusing to come and live with him at Greenwood. As above stated, it is not certain from her testimony her refusal to do that is irrevocable. (Hn 3) But, if so, that would not revive the prior dead acts expressly forgiven and condoned by the parties, which acts constituted the foundation of pending litigation and which litigation was dismissed pursuant to the agreement. And, as to whether the wife or the husband, either or both, breached the agreement, it might be added that, on petition of the wife filed on the Equity side of the Circuit Court of Jefferson County, Alabama, that court, by decree dated January 8, 1948, adjudged that appellee was liable for separate maintenance of the wife and had failed to support the children, and ordered him to pay the sum of $200 per month for those purposes. This decree was had on personal service upon appellee. We refer to this case only as bearing upon which party, if either, has breached the agreement of March 13th. We do not pass upon the effect of this decree on future litigation between the parties hereto.
We, therefore, hold that the learned chancellor was in error in granting appellee a divorce under the circumstances disclosed by this record. Nor do we now pass upon the right of the wife to temporary maintenance, solicitor's fees, or of either to a divorce, under circumstances which may exist when, and if, those questions are presented to the court.
Reversed and remanded.