Billington v. Billington

531 So. 2d 924 (1988)

Sam Joe BILLINGTON v. Helen I. BILLINGTON.

Civ. 6244.

Court of Civil Appeals of Alabama.

June 29, 1988.

G. Coke Williams of Williams & Norton, Anniston, for appellant.

Patrick P. Hughes, Anniston, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

The final judgment divorced the parties on account of the husband's adultery. The only issue on his appeal is whether there was sufficient evidence to support the granting of the divorce on that ground.

While it is difficult and somewhat rare to prove adultery by direct means, the charge of adultery in a divorce case may be proved by circumstantial evidence which creates more than a mere suspicion. The circumstances as proven must be such as would lead the guarded discretion of a reasonable and just man to conclude that the act of adultery has been committed. Beasley v. Beasley, 276 Ala. 247, 160 So. 2d 863 (1964); Russell v. Russell, 270 Ala. 662, 120 So. 2d 733 (1960); Linderman v. Linderman, 49 Ala.App. 662, 275 So. 2d 342 (Ala.Civ.App.1973); Turner v. Turner, 46 Ala.App. 350, 242 So. 2d 397 (Ala.Civ.App. 1970); Watkins v. Watkins, 45 Ala.App. 450, 231 So. 2d 904 (Ala.Civ.App.1970). The judicial mind must be reasonably satisfied from such circumstantial evidence and all reasonable and proper inferences therefrom that the act was committed.

No good purpose would be served by summarizing the evidence. To do so would only rub salt into festering open wounds by making forever public the personal lives of *925 the parties. Beasley, 276 Ala. at 248, 160 So. 2d at 864; Linderman, 49 Ala.App. at 664, 275 So. 2d at 343; Turner, 46 Ala.App. at 351, 242 So. 2d at 398.

The trial court's judgment must be presumed to be correct under the ore tenus rule. Linderman, 49 Ala.App. at 665, 275 So. 2d at 345. The entire testimony has been read and studied. We find that there is ample legal evidence with reasonable inferences that flow therefrom to support the factual finding and holding of the trial court. The final judgment was not palpably wrong. Since the trial court's judgment is fairly supported by credible evidence, it is our duty to affirm it, and we hereby do so. Linderman, 49 Ala.App. at 664, 275 So. 2d at 344.

The wife applied for an appellate attorney's fee to be paid by the husband, and we hereby allow it in the amount of $500.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.