
    Boothe v. Boothe
    No. 42044
    November 27, 1961
    134 So. 2d 733
    
      
      Joseph E. Brown, Natchez, for appellant.
    
      
      Laub, Aclams, Forman & Truly, Natchez, for appellee.
   McGehee, C. J.

The appellant and appellee were married on December 1, 1926, and there was admittedly born of the said marriage a daughter Billie Christine Boothe, now an adult resident of the City of New York. From December 1, 1926, until December 15, 1947, the appellant and appellee lived together as husband and wife in Adams County, Mississippi.

This case involves a suit for divorce by the appellee William Lee Boothe against the appellant Mrs. Della White Boothe on the ground of desertion, which the appellee alleges in his bill of complaint to have taken place on December 15, 1947. It is also therein alleged that the parties have not lived together since the said date of their separation.

Prior to the filing of the instant suit in 1959 the appellant, Mrs. Della White Boothe, filed one suit for divorce on the ground of habitual cruel and inhuman treatment, and later a suit on the alleged ground of desertion. Upon the trial of the present suit the first suit filed by the wife against the husband was by agreement of the parties dismissed, and the trial was of the instant case. The suit filed on the ground of desertion by the wife against the husband was tried and the issues therein were resolved in favor of the defendant William Lee. Boothe. The appellant had alleged in both of her suits that there was born of the marriage between her and the defendant William Lee Boothe one child, Billie Christine Boothe, no mention having been made in either of said suits of the child for whom she is now asking-support, Francis Elbert Boothe, a boy who was admittedly born on November 8,1948, or approximately 11 months after the husband and wife had separated.

In the instant case the appellant denied in her answer that she had deserted her husband, and she made her answer a cross bill asking support money for and on behalf of Francis Elbert Boothe.

Opon the trial of the case the chancellor, after hearing-all of the evidence offered that he deemed to be competent, decided that the appellee William Lee Boothe was entitled to a decree of divorce on the ground of willful, continuous and obstinate desertion for more than the period of one year required by Section 2735, Code of 1942. The trial court also held upon conflicting testimony that the appellee William Lee Boothe was not the father of the said Francis Elbert Boothe and that he was therefore under no duty to contribute to the support of the said child.

After a careful consideration of the pleadings and the evidence in the case we are of the opinion that the allegations of the bill of complaint were sufficient to state a case of desertion against the wife and we are unable to say that the chancellor was manifestly wrong in holding that the proof offered was sufficient to sustain the charge of desertion. He expressly adjudicated that the appellant had deserted the appellee continuously for more than one year prior to the filing of his bill for divorce and that such desertion was willful and obstinate. He also adjudicated that Billie Christine Boothe was the only child born of the marriage between the parties.

No point was made in the trial court as to the insufficiency of the bill,of complaint to state a ground for divorce on the basis of desertion. We have, therefore, concluded that the decree appealed from, which granted the divorce to the husband and denied support for the said Francis Elbert Boothe, should be affirmed.

Affirmed.

Kyle, Gillespie, McElroy and Jones, JJ., concur.  