#### Cole v. Cole.

Opinion delivered March 30, 1925.

• Pl»0ECE-^CONeEÜSIVENBSS > OF ■ WIFE’S STATEMENT.--Ip an action ’1 fejy- ■ ¡&> .-ywiv^e- f fQr- -divorce «n. .the- {p-oppds of ¡cruel .treatment and ; , ^dignities, written statement, g^yen ito t him at the time she ' lefi him, in 'which-she absolved him from any charge of mist '1 ‘"conduct, held hot eoriclusive, but merely tó be considered with 1» fotfett1 téstiriliShyí- ■■■' 1 -

2'.3iD-tvttfcéE-i-cÁNCEimATÍ(ÍNi of dikbAfartteS-. — In an-’ action fot i, diyfojce, eancellatien of - the husband’s deed to his: mother, as in ■ fpaud, n£ the .wife’s rights was not justified where his ipother was not a party.

3. DIVORCE — allowance of attorney’s fee. — Where, on the' pend-of art: appeal by the’husband,- the trial cotirt directed the ,'Tf-h|usha!nd -to: psa^s:$50- fet the wife’s,-attorney, and-the (decree is , ¡ raj^tmedi ih so far, as.- ijt ,'a¡llo-yvs a diy¡o,ree,to.the wife, the. amwmt , of such fee will not be deducted from the property allowance '‘miáiíd'By-the tr'istt coii-rt.' ‘

4 '’--SivORéti — EFFÍsfc'd 0F-Reversal' fk PART. — Where a- decree^ in a vu* divorce cate was-reversed in so far ad it canceled- a deed from appellant ¡to> hue not ,a party jtq the suit, ;and,remanded for .ffyirther .proceedings .■ qn, that issue alone, this doe? not call for- a reversal (of fhe Vhole' cause nor reopen the issues' as to the 'SffbVéé,'distribution of property,'and ¡allowance óf C’óúfisel fees'.

5. Appeal''And' error — ñewlV discovered evidence. — An apipíicá'- > -;'/Mtf<w;óni ¡rehearing; ¡for. a- -new ¡trial an a-divorce case on-account > 'of,ngwly discovered, evidence .yijl.not ¡be considered on .appeal,

fi. h^VqRQBVPROCEEBING TQ il^ODIFY -DECREE. AS .TO CUSTODY, OF , ^HJt-DREi^. — A proceeding to modify a decree; in a divorce, suit _ as to the custody of the children,’ based', upon' newly discovered “! 'evidence nof in ‘the -récord;1 must btigihate : ih the trial'court, • ’Land cart - be reviewed - only' on ■ appeal from its- Recree.

Appeal, fpoin Greene^Chancery 'Court; '&am Cosien, ^pép^áí Glj'an'ceilor'y

reversed in part.

. ffeff;Éfqtton, ÍQi: $$>pellanb

for appellee.. . .

McCulloch, C. J.

Appellant and appellee are .husband and, wife,, andt)1*? .aetion was, instituted by appellee ,{tbe .wiie^.to.tpbta,!» a .cUyorce and to obtain her dist^ibjitiyp- simara of. appellant’s., property. The. action ¡originated. merely, as .one for division - of ■ property, ,bnt *382subsequently appellee filed an amended complaint praying for a divorce on the ground of cruel treatment and indignities.' Appellee secured, at the commencement of the action, a temporary order from the chancery court restraining appellant from disposing of his property. It is also alleged in the complaint thait appellant had fraudulently induced her to join, in a conveyance of a tract of land to appellant’s mother, Mrs. Angie Cole, and that this was done for the sole-purpose of placing the title beyond appellee’s reach in securing her rights in appellant’s’estate. There is a prayer for a cancellation of that deed.

Appellant filed his answer denying all the allegations of the complaint with respect to. misconduct on his part, and the cause was heard by the court on oral testimony.

The parties intermarried on August 24, 1919, and lived together until the month of July, 1923, when appel-lee left appellant’s home and went to the home of her parents, and about a month later instituted this action. They have three children — two . girls and a boy — their ages running from three years down to about two months at the time of the commencement of the action.

Appellee alleged in her complaint and introduced testimony tending to prove all sorts of misconduct towards her on part of appellant. She claims that he neglected her during illness, particularly at the time of the birth of her children, subjecting her to hard work in housekeeping, failure to provide clothing, abuse, epithets; that he struck her one time with a stick; that he was jealous of her association with her friends, and denied her any privileges of going into society. All of these charges were denied by appellant, and he introduced testimony tending to show that the charges were unfounded.

• The récord is voluminous, and there is a large number of witnesses on each side of the controversy. No useful purpose would be served in reviewing the testimony in detail. From careful consideration of it we fail *383to-see. that the finding of the trial court is against rthe preponderance of the evidence. ;....

.The contention of appellant is that appellee left of her .own accord and without , any .cause being given, and that her sole purpose was to enter upon, some career of her own, and that, when she left him, s.he gave, him a written statement absolving him from any charge of misconduct. There is some conflict. as to the circumstances under, which the statement was made, but, at. all events, it is. not conclusive and is. only to .be considered along with other testimony in the case in determining whether or not appellant was in fact guilty of.the misconduct charged.

Appellant is shown to be a man conducting a successful business and receiving a fairly good income, and the trial court in its final decree set aside a certain .amount of personal property to .appellee as her portion, and also ordered appellant to pay an attorney’s fee of $150 and also to pay to appellee the sum of thirty-five dollars per month for the support of the children. The court' also canceled the deed to appellant’s mother, Mrs. Angie Cole, and appointed commissioners to set apart appel-lee’s portion of one-third..

We. find that the testimony justified the. award of personal,property to appellee, as well as the other;allowances, but it was improper to. cancel the deed to Mrs. Cole* for the reason;.that she was not a party to the action.

During the pendency of the appeal, this court made an.¡order directing appellant to. pay appellee the snm of $50, to be used in payment of attorney’s- fees in this court, and we reserved until final disposition of the case on the merits, the question whether or not this should be deducted from the amount allowed by the trial court. We conclude that the additional sum mentioned should not be deducted, and that the original allowance made by the trial court should stand, ■ , .

The decree is therefore affirmed in all things except as to the cancellation of the deed to Mrs. Cole, and that *384part of the decree is- -reversed,'1 and the' canse -remanded with directions that, unless' appellee is advised to make Mrs. Cole a party to- the action and does áo, the complaint he dismissed* as to-the cancellation of the conveyance. It is so ordered.,

McCulloch, C: J.,

(bn rehearing-). Appellant''has filed here a certified copy of an order jof’the chahcellór, rendered subsequent to "thé rendition' of the' deefeedp-pealed from, and in this1 order the custody of the children is changed'from appellee to appellant, without changing, however, the: Order previously 'made b'y! the court' with respect to-the payment of thirty-five’''dollars «per niori/th to appellee for the support of the 'children. It does ‘not appear from this .supplemental record, hoWév'ér, that the court was asked to modify the original decree in this ■respect,‘ nor has there be‘en any appeal prosecuted from the order.1 We are asked to modify the decree so afeto eliminate the requirement for the payment of the monthly allowance to'appellee, or to remand the whole’caufeé for trial de novo so that' the’ lower 'cohrt ‘can make such an ‘order and can hear' new' evidence Oh all the - issues in the'case.

It is alleged in the petition' for ‘rehearing that appellant has discovered new ’evidence, and his' counsel insist that, inasmuch ás the cause has been remanded for’further proceedings with respect to the cancellation of -the ’deed to Mrs. Angie Cole, we- should' remand the whole cause for further proceedings so as to afford appellant an opportunity to present this.evidence. ’ ■ - '■1

The 'factthat’ we reversed the cause on one issue does not call for a reversal'of the 'eáüsé On1 the'maih: issue, the evidence being sfiffieiefit ' to ’ support the decree ■ fór' a divorce .and for distribution: of • property- ’ allowance- of fees, etc. Neither does the-fact that appellant has discovered new evidence call for a reversal. We’try chancery- oases hete de, novo, but upon the record made'bn. the trial below, and we have nb authbrity to consider-here, ah application for a trial d&'novo 'on. account of-newly discovered evidence,-that being'an original'proceeding.--The *385same may be said with reference to appellant’s application to modify the decree making a monthly allowance. T,hat allowance is subject to change by the 'chancery court, and we have no authority to do so here except upon appeal from an order of the chancery court refusing to change the allowance. The question of modification of the requirement of the original decree with respect to custody of the children and allowance of alimony, etc., constitutes a new proceeding which must originate with the trial court and be brought here on appeal before we can review such proceeding. The way is open for appellant to apply to the chancery court for any change with respect to allowances that may be called for by altered circumstances of the parties.

Rehearing denied.