Ammons v. Ammons , 144 Miss. 314 ( 1926 )

^* Corpus Juris-Cyc References: Divorce, 19CJ, p. 78, n. 54. The appellee was complainant in the court below, and filed a suit against the appellant, her husband, for divorce, and for support of their two minor children. The bill alleged "cruel and inhuman treatment" as the cause for divorce, and the chancellor, after hearing the proof, granted the appellee a divorce, the custody of the children, and fifty dollars per month alimony.

In cases of divorce, the complainant must not only establish grounds for the divorce, but must be free from provoking the defendant into the acts which constitute the alleged grounds for divorce. In 7 Enc. of Pl. and Pr., at page 95, it is said:

"Where Desertion is the Ground Set Up. — The defendant may set up any misconduct of plaintiff which justified the separation, or that the separation continued with the consent or acquiescence of the plaintiff, or that defendant offered to return and plaintiff refused the offer, or that the period of desertion was not continuous."

"Where Plaintiff Alleges Cruelty. — Where the plaintiff alleges cruelty as a ground for divorce the defendant may plead that the plaintiff provoked the misconduct, or that the defendant is repentant and will reform, or that the injury was not intended and will not be repeated."

It will thus be seen that a plaintiff cannot bring about a situation and then take advantage of its result to secure a divorce. In 7th Am. Enc. of Pl. Pr. 88, it is said:

"The defendant in a divorce suit is concluded by his pleadings as in other actions, and cannot prove a defense which has not been alleged. . . . But there is a maxim concerning all suits for divorce that `a cause is never concluded against a judge.' It is the duty of the court to refuse a divorce in all cases where the evidence discloses, or the court discovers on its examination of the witnesses, that the plaintiff is not entitled to a divorce, whether the defense is alleged in the pleadings or not."

We think it best not to set up the testimony involved in the record. But after a most painstaking and thorough examination and consideration of the whole record, we think the plaintiff has failed to establish her right to a divorce, and that the unpleasantness which existed between her and her husband was largely due to her own conduct and attitude. In other words, that she materially contributed to bringing about the status on which she relies to obtain a divorce.

The case, on its facts, is not as strong as the case made for the complainant in Humber v. Humber, 109 Miss. 216, 68 So. 161, although there is much analogy between the two cases.

It follows from what we have said that the chancellor in the court below erred in granting the decree for divorce.

On the question of alimony for the support of the children, we think the decree of the court was reasonable and proper, and, so long as the children are in the custody of the complainant below, this allowance will stand. In all other respects the decree of the court below is reversed, and a decree will be entered here denying the divorce.

Affirmed in part, and reversed in part.