4 Div. 204.

171 So.2d 234 (1964)

Fred T. McLENDON v. Lillian F. McLENDON.

Supreme Court of Alabama.

For majority opinion see 277 Ala. 323, 169 So.2d 767.

SIMPSON, Justice (dissenting).

It is my view that the evidence more than justified a decree a vinculo rather than the instant one which throws the parties back upon society in dangerous positions, where a husband is without a wife and a wife is without a husband.

Unquestionably the trial court, in the exercise of a wise discretion, had the right to enter a decree a vinculo since under our statutes and decisions both decrees rest upon the same ground and the bill, containing a prayer for general relief, would have authorized such a decree. Considering the circumstances of these parties, I am persuaded that justice demanded that an absolute divorce be rendered. They have been married for over thirty years and the evidence would convince the impartial mind that they will never be reconciled, which is one of the arguments most frequently used in defense of divorces from bed and board.

The text writers and the decisional law point out that a divorce from bed and board is a poor arrangement at best, as is stated in 27 C.J.S. Divorce § 160, p. 786:

"It is usually preferable to grant an absolute divorce; and such a divorce may and should be granted where there appears to be no possibility of a reconciliation being effected after a divorce from bed and board."

I think that when the evidence is such that it is apparent that the parties will never again live together in peace and harmony, sound equitable principles dictate that the court render an absolute divorce where statutory grounds are shown. Quoting from Keezer on Marriage and Divorce, Morland's Third Edition, 1946, § 244, the Kentucky Supreme Court noted in Coleman v. Coleman, Ky., 269 S.W.2d 730:

"`The English courts have said it [divorce from bed and board] is throwing parties back upon society in the undefined and dangerous characters of a husband without a wife, and a wife without a husband. * * * Legal separations are expressly prohibited in some states, and in others are unknown. It has been a disputed question whether they serve any useful purpose. The weight of argument and authority is against them. To be sure, they may possibly secure a judicial settlement of matrimonial troubles and give an innocent wife protection from a cruel or drunken husband; but the same result could be obtained by divorce, alimony, and a restraining order or injunction, and leave the parties in a much better position for themselves and before the community. Mr. Justice Swift says, "it places them in a situation where there is an irresistible temptation to the commission of adultery, unless they possess more frigidity, or more virtue than generally falls to the share of human beings".'" See also Conant v. Conant, 10 Cal. 249, 257, 70 Am.Dec. 717; Crews v. Crews, 68 Ark. 158, 56 S.W. 778; Crabtree v. Crabtree, 154 Ark. 401, 242 S.W. 804, 24 A.L.R. 912; 27A C.J.S. Divorce § 160(6). The theme of these cases is that the trial court is invested with a discretion depending upon the evidence as to whether a divorce a mensa will be granted or a divorce a vinculo.

The following statement in the majority opinion is certainly an inaccurate appraisal of the law: "Regardless of the argued desirability of granting a full divorce in all cases where the grounds for a divorce are established, such policy is beyond our province in view of the clear statutory provisions providing for the award of limited divorces where the party applying desires such a limited decree". It will be remembered that in this case there was a prayer for general relief and to say that a court of equity would have no discretion to decree under the evidence a divorce a vinculo as well as a mensa is not only contrary to general principles of equity but is too hidebound a view for me to accept.

On the basis of these considerations I would modify the decree below by granting the parties a complete divorce.


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