Apperson v. Apperson

Jan 12, 1928
6 Div. 847.
Versions:115 So. 229
1928 Ala. LEXIS 418
217 Ala. 157
*159 SOMERVILLE, J.

The main issue presented by this appeal is one of fact, to be determined by the weight of the evidence. The testimony of complainant, if uncontradieted, or if believed, would justify a decree of divorce against respondent on the ground of cruelty, as prayed.

Her testimony is, however, without any substantial support, and is specifically - contradicted by the answer and testimony of respondent, which finds some very material corroboration in the testimony of several other witnesses. The burden of proof in these eases is, as usual, upon the complaining party ; and here complainant’s burden is to reasonably satisfy the court of the truth of her charge of conduct on the part of respondent amounting to culpable cruelty. Jones v. Jones, 189 Ala. 286, 66 So. 4; White v. White, 207 Ala. 533, 93 So. 457.

Without here dissecting and weighing the evidence in detail, we are content to simply say that it has been thus considered, and that we are not reasonably satisfied, in view of the countervailing evidence, that respondent has been guilty of the misconduct charged.

With respect to complainant’s right to alimony and counsel fees pendente lite, we have dealt with that question in'the related case of Ex parte Apperson (Ala. Sup.) 115 So. 226. 1 The final decree in this cause was merely that complainant was not entitled to the relief prayed; that is, to divorce and permanent alimony. There was no determination of the question of alimony and counsel fees pendente lite — a fact which complainant’s motion for a decree on the register’s report, filed 24 days after rendition of the final decree, implicitly recognized. In fact, the register’s report had been ordered to lie over until November 13th for filing objections thereto, and for further consideration. This appeal, therefore, does not bring before us for review any action of the trial court with respect to such allowances. Had the final decree, the parties consenting, undertaken to determine those matters, doubtless the rulings thereon would have been reviewable, as held in Jeter v. Jeter, 36 Ala. 391, 406.

Counsel for appellant- — complainant below-invoked no rulings on those matters until some weeks after the final decree was rendered, and she will be left to her pending proceeding by mandamus to review the action of the trial court in refusing to make the allowances in question.

It results that the final decree appealed from must be, and is, affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.