143 Ark. 276 | Ark. | 1920
(after stating the facts). It would serve no useful purpose to state in detail the testimony relative to the statutory charge of the plaintiff that the defendant offered such indignities to her person as to render her condition in life intolerable, or that he was guilty of such cruel and barbarous treatment as to endanger her life. Her own testimony and that of her mother, standing alone, might warrant a decree of divorce in her favor; but their testimony is flatly contradicted by that of the husband and he is corroborated by their neighbors. It does appear that the husband was insanely jealous of his wife, but it is also evident that he had good grounds therefor. Divorce is a remedy provided for an innocent party, and it may be said, in this connection, that the husband was not guilty of the statutory grounds alleged against him. Therefore, he is entitled to a divorce if the evidence establishes adultery on the part of the wife. We do not deem it necessary to discuss the testimony on this phase of the case at length. The letter to Stecher speaks for itself, and from it the chancellor might have inferred that the party writing it was unduly intimate with Stecher and had been guilty of adultery with him. The party writing the letter confesses her love for Stecher and that she had been deceiving her husband. She begged Stecher to come to her when her husband was absent and writes in such a way that the chancellor might have found that she had been guilty of adultery with Stecher. It is true that the plaintiff denied in positive terms that she had written this letter, or that she had been guilty of adultery with Stecher, or with Randall. The husband, however, testified that the letter was in his wife’s handwriting. The original letter was before the chancellor, and with it for the purpose of comparing the handwriting was an admittedly genuine letter written by the plaintiff. We have the original of these letters before us and have the same opportunity to make a comparison of the handwriting as did the chancellor. Hence we can not say that the finding' of the chancellor that the plaintiff wrote the letter was against the preponderance of the evidence. This is especially true when we consider that it was shown that Wallace Randall, another admirer of the plaintiff, was seen to enter her house at 10 o ’clock in the evening and leave there at 3 the next morning, and this at a time when the husband was absent from home. It is true this witness who was a next door neighbor was not on good terms with the plaintiff, but this fact may be the reason why she watched for the egress of Randall after she had seen him enter the house in the absence of the husband so late in the evening.
It was shown by another neighbor that the plaintiff made a date with Randall at the picture show on two occasions for 3 o’clock. It does not appear whether this was day or night time. There is a good deal of testimony in the record which we have not abstracted because it amounted to no more than suspicious conduct on the part of the plaintiff. There is evidence in the record, however, to show that she kept company with Randall during her husband’s absence.
Adultery may be proved by circumstances. The circumstances, however, must be such as “to lead the guarded discretion of a reasonable and just man to the conclusion of guilt.” The conduct of the plaintiff when considered in connection with the letter written by her to Stecher gives character to her relations with him, and, after a careful reading and consideration of the whole record, we can not say that the finding of the chancellor that the plaintiff was guilty of adultery is not sustained by a preponderance of the evidence. Therefore, the decree of the chancellor granting the defendant a divorce must be affirmed.
The court awarded the custody of Leland Lockhart, Jr., to the husband and made no provision for the wife to visit him. The record shows that she loved her little son and had always treated him kindly and affectionately. It was error for the chancellor not to give her the right to visit her son on all proper occasions, and for that error the decree in this respect will be reversed with directions to the chancellor to provide for visitation by the wife to their little son on-all proper occasions.
In other respects the decree will be affirmed.
