Winfield v. Winfield

Griffith, J., delivered the opinion of the court. Appellant filed a bill for divorce against appellee, his wife, charging habitually cruel and inhuman treatment, later amended so as to charge adultery. Appellee, the wife, answered and filed a cross bill, charging her husband with cruel and inhuman treatment. Both demanded the custody of the three children. Upon the hearing a decree of divorce was granted without stating the ground ■ or grounds therefor; the custody of the two older children was given to the husband; alimony in a lump sum was awarded to the wife, as well as the custody of the youngest child, and she was given the sole and exclusive right to the occupancy of the former marital home. The husband appeals. The assignment of errors does not challenge the divorce, but goes to the alimony and to the other features of the decree so far as adverse to the husband. There is no cross-appeal. It is a familiar principle of appellate procedure that' where it does not affirmatively appear on what ground the decision of the lower court was made, the duty of the appellate court is to sustain the judgment or decree if there was any ground disclosed by the record upon which the decision could properly have been reached. It follows as a corollary that if the evidence sustains the decree or judgment on only one ground the action of the trial court *395 will be ascribed to that ground, and not to some other not so sustained. As stated by this Court in Hulett v. Hulett, 152 Miss. 476, at page 508, 119 So. 581 at page 590: “When the chancellor does not make a specific finding of facts, then the court must look to the evidence, and see what state of facts, if any, will justify the decree. ’ ’ Compare Carr v. Miller, 162 Miss. 760, 139 So. 851. The evidence in the present case is not sufficient to support a decree of divorce on the ground of cruel and inhuman treatment as charged either by the husband or by the wife, but the decree is amply sustained under the charge of adultery made by the husband in his amended bill. "When a divorce has been properly granted because of the adultery of the wife, she is not entitled either to alimony or to the custody of the children, save temporarily as to an infant so young as not to permit separation from its mother, and save as to some exceptional circumstances, none of which are here present. This rule, long recognized in this State, was expressly reaffirmed in Hulett v. Hulett, supra, and we need not pause to elaborate upon it. If the decree in this case awarding the custody of the youngest child to the mother might have been justified because of its age, that reason has ceased to exist the child now having arrived at the age of six years. The decree awarding alimony in money to the wife, except as to the orders of temporary alimony pendente lite, is wholly reversed and vacated, and a decree will be entered here awarding the custody of the three children to their father, nothing of a competent nature appearing in this record to the contrary of his fitness and suitability; and it is not shown that he was in any way substantially to blame as respects the delinquency of the wife. We leave open the further question whether the former wife shall be granted the privilege of visitation to the children, and, if so, when and under what conditions and with what precautions. We think that issue should be remanded to the chancellor, who will be able to see *396 not only what happened before the appeal but what has happened or may happen since. It appears that the home place occupied by the parties at the time of their separation was owned by the husband and wife as tenants in common, each owning in title a half interest therein. As stated, the. decree of the trial court was that the wife should have a right to the sole use and occupancy of the property. Inasmuch as we are entering a decree here awarding the custody of each and all the three children to the father and former husband, we also reverse the decree as to the property and now order and direct that the property shall be made free to a partition proceeding, the equities to be worked out therein to the same effect as if the parties had never been husband and wife, save that the wife shall not be charged for the use of appellant’s half interest for any period of occupancy by her with the youngest child up to the time of the filing of. the mandate in this case in the court below. Any other issues that may arise, not covered expressly or by necessary implication in what has been said in this opinion, are, of course, to be determined by the chancellor on the remand. Reversed, decree here, and cause remanded.