LIVINGSTON, Chief Justice.
Suit for divorce by Grady Kidd against Inez Mott Kidd, a person of unsound mind, upon the grounds of adultery and voluntary abandonment. Cross bill by respondent for payment of reasonable attorney's fee, and for general relief. From a decree granting a divorce and denying relief under the cross bill, respondent, by and through her legally appointed guardian, Lillie M. Watkins, prosecutes this appeal.
The decree of trial court, in part, states as follows:
Said portion of the decree, in our judgment, clearly exhibits a misconception of "Voluntary Abandonment," as a ground for divorce, on the part of the lower court.
Tit. 34, § 20, 1953 Cum.Pocket Part, Code of Alabama 1940, provides:
Abandonment, as used in our statute, imports a willful desertion by one party of the other, and involves a violation of marital duty by the abandoning spouse. Darden v. Darden, 246 Ala. 525, 21 So.2d 549. To constitute voluntary abandonment, authorizing a decree of divorce, there must be a final departure, without the consent of the other party, without sufficient reason therefor, and without the intention to return. Nelson v. Nelson, 244 Ala. 421, 14 So.2d 155; Miller v. Miller, 234 Ala. 453, 175 So. 284; Perry v. Perry, 230 Ala. 502, 162 So. 101; McEvoy v. McEvoy, 214 Ala. 112, 106 So. 602; Mayo v. Mayo, 199 Ala. 551, 74 So. 971; Brown v. Brown, 178 Ala. 121, 59 So. 48.
We think that the decree of the lower court plainly shows the trial judge to have been of the erroneous opinion that it mattered not whether respondent, appellant, voluntarily abandoned appellee. According to the language and meaning of Tit. 34, § 20, subd. 3, supra, whether appellant was being detained against her will should have been a question of paramount importance. Obviously, the circuit judge thought otherwise.
In thus granting the divorce, the court below erred not necessarily in a finding of fact, but, instead, in the application of the law to the facts. Therefore, the great weight usually given to a finding where testimony is heard ore tenus does not obtain. Chandler v. Whatley, 238 Ala. 206, 189 So. 751.
The decree of the circuit court is reversed and remanded.
Reversed and remanded.
SIMPSON, GOODWYN and CLAYTON, JJ., concur.