This is an appeal by the husband from a decree which denied either spouse a divorce, for the reason that both were at fault, and which allowed the wife alimony of $100 a month in addition to the sum the husband had agreed to pay for the support of his wife and children. The appellee originally sought a divorce upon the ground of personal indignities. By *395cross-complaint the appellant asked for a divorce on the ground of adultery, and the chancellor remarked in an oral opinion that “he came pretty close to proving it.” In fact, the chancellor seems to have been convinced that adultery had occurred, for that was his reason for denying a divorce to the wife.
In our opinion the appellant did prove his charge by a preponderance of the evidence. We will not detail all the testimony indicating that the appellee entered into an adulterous relationship with J. S. Griffin. After some eight years of a not too happy marriage Mrs. Ayers met Griffin, who is a bus driver, during a trip to Florida in 1953. She readily admits that between that meeting and her separation from her husband, in February, 1955, she frequently met Griffin for coffee and talked to him repeatedly by telephone. She attributes to coincidence the fact that she seems to have encountered Griffin in or near Little Rock, Hot Springs, Houston, Omaha, and perhaps other cities. Mrs. Ayers says, for example,' that she flew to Houston to see a basketball ganie,' but it happened that Griffin was also there; they had dinner and breakfast together and stayed at the same hotel. There is also evidence that she visited Griffin at his apartment in Fort Smith and may have received him in her home during her husband’s absence. The chancellor feared that if he granted the divorce sought by both parties “Mrs. Ayers will immediately get married to her bus driver friend,” and the increase in alimony was awarded on the express condition that Mrs. Ayers not see Griffin in the future.
The appellant, it is true, is by no means free from fault. In the course of establishing a successful position in the business world he seems to have devoted very little time to his family. When his suspicions were aroused he had his wife spied on by paid investigators. Perhaps with some provocation he cursed and struck his wife when she asked if she might have Griffin in the home for coffee. On another occasion he lost his temper at a dance and injured his wife’s hand slightly. Had the plaintiff’s own conduct been guiltless the chancellor *396would have been justified in granting her a divorce for indignities.
Thus the question is whether both parties should be denied a divorce when the husband has been guilty of indignities and the wife of adultery. That same situation was presented in Longinotti v. Longinotti, 169 Ark. 1001, 277 S. W. 41, where the court concluded: “We concur in the finding of the court below that both parties were at fault, but we think appellee [the wife] was the greater and the first offender, and we have concluded, under the case made, that a decree of divorce should be awarded appellant, and it will be so ordered.” We think the same course should be followed in the present case, especially as there seems to be no possibility of a reconciliation. Indeed, a psychiatrist whom both parties consulted before their separation was of the opinion that their temperaments would continue to clash. (We do not mean to intimate that the present suit is a collusive one; the record shows clearly that it is not.)
We do not regard condonation as being an issue in the case, although it was mentioned during the court’s deliberations. In the course of her testimony the appel-lee stated that she and her husband had marital relations a day or two before they separated. This issue, however, was not raised by the pleadings, was not explored at the trial, and has not been argued in the briefs. A defense that was apparently waived by the appellee and that was certainly not fully developed should not be made the controlling point in the case.
By their written separation contract the parties agreed that the appellant would pay $300 a month for the support of Mrs. Ayers and the three children. Mrs. Ayers was represented by counsel during the protracted negotiations that preceded the execution of the separation agreement. The evidence does not persuade us that she was overreached in the matter or that there were misrepresentations about her husband’s financial condition. The chancellor’s award of an additional $100 a *397month for alimony, as distinguished from maintenance for the children, was based upon his finding that Ayers was not entitled to a divorce and was conditioned on Mrs. Ayers’ not seeing Griffin again. Since we hold that the appellant is entitled to an absolute divorce on account of his wife’s misconduct the premise for the trial court’s increase in alimony no longer exists, and the appellee should be bound by her agreement. We point out, however, that the agreement is not conclusive with respect to maintenance for the children and may be modified as in other cases. Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409.
The appellant’s complaint that the trial court allowed an attorney’s fee as a condition to the right of appeal is answered by the opinion in Roberts v. Roberts, .....Ark. ...., ....S. W. 2d ...., and in this case, as in that one, we do not consider the amount fixed to be excessive.
Reversed.
MoFaddiN and Ward, JJ., dissent.