Stabile v. Stabile

McCLELLAN, J. The appellee was granted a divorce a vinculo from the appellant on the ground—the only one insisted upon— that the husband (appellant) had “committed actual violence on her person, attended with danger to life or health, and that from his conduct there is reasonable apprehension that he will do her bodily violence”—a charge referable, in a way, to Code, § 3795. [1] It appears from a careful review of the whole evidence that the complainant (appellee) did not discharge the burden of proof to establish the charge of cruelty, or danger to life or health, from the acts of the appellant. The distinct weight of the legally admissible, credible evidence was opposed to the charge preferred as ground for divorce. Furthermore, it was proven that complainant (appellee) was guilty of adultery after she left appellant at Cleveland, Ohio, which appears to have occurred before Christmas, 1917, and that a child was born t’o her in October, 1918. She testified on her cross-examination that she did “not know whether or not the respondent, my husband, is the father of my baby. * * * I do not know who is the father of this child.” A divorce wilí not be granted a complainant where there exists another statutory ground for divorce in favor of the defendant; and even where such reciprocal causes of divorce are both proven, under separate bills, the court will not grant a divorce to either party, Ribet v. Ribet, 39 Ala. 348-350. This decision is in immediate point. The decree appealed from is reversed, and a decree will be here rendered dismissing the complainant’s (appellee’s) bill. Reversed and rendered. ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.