Gardner v. GardnerGardner v. Gardner
- Reporters:
- , ,
- Before:
- Livingston
The appellant, J. P. Gardner, filed suit in the Circuit Court, in Equity, of Marshall County, Alabama, against Lula Taylor Gardnеr, his wife, seeking a divorce on the ground of the alleged adultery of the wife. He further prayеd for the custody and control of the two minor children of the parties, a boy six years of аge and a girl three years of age.
Appellee, the wife, answered and denied the allegation of adultery: made her answer a cross-bill, and alleged in substance that appellant was now and had been for sometime in the state of Florida; that before going to Florida, appellant took the two minor children away from her and placed them in the custody and control of appellant’s father and mother; that she, the appellee, was denied the right to visit or ever see her children; that appellant’s father and mother were not suitable or proper persons to have the care, custody and contrоl of said minors: that appellant was working and was able to support said minors. Appellеe prayed for a decree awarding her the custody and control of the minor children, and an award for their support and maintenance out of the earnings of appellant.
The trial court made and entered a decree denying the relief prayed for in thе bill of complaint and dismissing it. The decree awarded to the appellee, the wife, the custody and control of the minor children of the parties, and directed the appellant to pay to the register of the court the sum of twenty dollars per month for the suppоrt and maintenance of said minors: said sum to be paid by the register to the wife. The husband appealed.
The cause was submitted for final decree on the pleadings and the depоsitions of the witnesses. When evidence is taken thus in the court below, a decree rendered thereon is here reviewed without the usual presumption in favor of its correctness. Seсtion 17, Title 13, Code of 1940; Wood v. Foster, 229 Ala. 430, 157 So. 863; Pollard v. Simpson, 240 Ala. 401, 199 So. 560; Chapman v. Cothran, 245 Ala. 468, 17 So.2d 677; Harvey v. Phillips, 247 Ala. 134, 22 So.2d 900.
On a bill for divorce, the charge of adultery may be proved by circumstantial evidence, but the circumstances must be such as would lead the guarded disсretion of a reasonable and just man to the conclusion that the act of adultery has been committed. Morrison v. Morrison, 95 Ala. 309, 10 So. 648; LeMay v. LeMay, 205 Ala. 694, 89 So. 49; Scott v. Scott, 215 Ala. 684, 112 So. 218; Pitchford v. Pitchford, 222 Ala. 612, 133 So. 718; Brown v. Brown, 229 Ala. 471, 158 So. 311; Windham v. Wind-ham, 234 Ala. 309, 174 So. 500.
The testimony relative to the adultery of the wife creаtes at most a mere suspicion. She was seen talking to her alleged paramour at thе post-office in Guntersville in the day time: she was seen going to and from a “brush arbor” meeting with him and оthers on two or three occasions: she was seen riding in an automobile with him a time or two whеn they were the only occupants of the car, and at other times when others were with them. Two letters written by appellee to a woman friend were introduced in evidence: evidence of the bad reputation of appellee for chastity, and evidencе of rumors concerning appellee and her alleged paramour were introduсed. On the other hand, appellee denied all accusations of adultery. Other witnessеs testified that her reputation for chastity was good: that she was a hard working woman, and took good care of her children: that she (appellee) and two sons, by a former marriаge, worked hard, made and gathered a crop after the husband went to Florida. The autоmobile rides were fully explained by appellee.
The acts of appelleе may have been sufficient to create suspicion, but were wholly insufficient under our authoritiеs to prove *510 adultery. Morrison v. Morrison, supra; LeMay v. LeMay, supra; Scott v. Scott, supra; Pitchford v. Pitchford, supra; Brown v. Brown, supra; Windham v. Windham, supra.
It is the well settled rule in this State that, in determining who should have the custody of children, the best interest and welfare of the child or children should be thе controlling and paramount inquiry. Hawkins v. Hawkins, 219 Ala. 31, 121 So. 92; Butler v. Butler, 222 Ala. 684, 134 So. 129; Thomas v. Thomas, 212 Ala. 85; 101 So. 738; Goldman v. Hicks, 241 Ala. 80, 1 So.2d 18.
In Thomas v. Thomas, supra [212 Ala. 85, 101 So. 739], it was said, “During the very tender years of the child thediusband has not an unqualified right to its custody, even when the wife is at fault in the separation. Mothering of a young сhild is one of its rights. None but the real mother can meet this high duty in full measure.”
A careful examination of the entire evidence fully persuades us that the welfare and best interest of the minors involvеd in this cause will be subserved in committing their custody and control to their mother. We also agree with that part of the lower court’s decree requiring the father to contribute twenty dollars рer month to the support and maintenance of said minors.
The decree of the trial court is due to be .affirmed. It is so ordered.
Affirmed.
GARDNER, C. J., and BROWN and SIMPSON, JJ., concur.