Lindsey v. Lindsey

In his motion for rehearing appellant contends that he did not allege immoral conduct on the part of his wife in his cross action in the case and that he did not allege that she was unfaithful to him. His petition alleged "that she, disregarding her marital vows, has constantly kept company with a single man spending nights with him * * *." He likewise further alleged "that she, on numerous occasions, has left the home of this defendant in company with another man, and failed to return to their home until 3:00 or 4:00 oclock the following morning." He alleged that because of such conduct he was entitled to a divorce from her and he further alleged that she was "not a fit person to have the care and custody" of their said two minor children and he asked for their custody. She testified, in effect, that he had falsely accused her of having improper relations with other men whom she named and her sister corroborated such testimony. Appellant did not testify or seek to refute such testimony. It is our opinion that a stronger implication could hardly have been made charging his wife of immoral conduct and of being unfaithful to him as a wife and it is our opinion further that he did, in effect, so allege. No other reasonable construction could be given such allegations in view of the charges his wife and her sister testified he had made against his wife, which charges he did not see fit to deny.