Anderson v. Anderson
110 S.E. 863
N.C.
1922
Check Treatment
Adams, J.

The defendant admits, not only his moral default in abandoning his wife, but as well his legal liability' to make suitable provision for her maintenance; but he insists that the judgment of the *142court contravenes established principles of law, and for this reason cannot be enforced. Against the validity of the judgment he interposes four objections:

1. The payments decreed are unwarranted and excessive.

2. Subjecting to a lien the defendant’s interest in land is without warrant of law.

3. The judgment violates Art. X, sec. 2, of the Constitution.

4. The defendant has only a defeasible fee in the lands known as the Dickens place.

As to the first objection the defendant admits that ordinarily the amount allowed for subsistence under section 1667 rests in the sound discretion of the court. Gram v. Gram, 116 N. C., 288; Bradford v. Reed, 125 N. C., 311; Matthews v. Fry, 143 N. C., 384. But he argues that in view of the limitation prescribed in section 1665 and of the actual value of the defendant’s property the amount of the payments imposed constitutes an abuse of the court’s discretion. It should be noted that the limitation to one-third of the net annual income from the estate (section 1665) applies when the court adjudges the husband and the wife divorced from bed and board, but not when the wife institutes the proper proceeding for alimony pendente lite under section 1666 or for a reasonable subsistence under section 1667. The Legislature has preserved this distinction through the entire statutory history of the law of divorce and alimony in this State, beginning with the act of 1814, and has evidently intended to empower the courts to make in each case such decree as the peculiar circumstances might demand. His Honor, therefore, was not required in this proceeding to confine the subsistence to one-third part of the defendant’s net annual income. Nor can we conclude that in any respect there was abuse of discretion. The plaintiff testified at the hearing; the defendant did-not testify, but introduced his father. Besides the desertion of his wife, the defendant admitted his adultery, and in addition, that the only question for his Honor was the subsistence to be allowed. His Honor inquired into the defendant’s financial condition and found the facts. Section 1667 provides that the order of allowance may be modified or vacated; but the application must be made in the proper jurisdiction so that the circumstances may be inquired into and the merits of the case determined. The first objection, we conclude, cannot be sustained.

Concerning the second, the defendant contends that the court, while in proper instances it may sequester a part of the husband’s property for alimony, has no power to deprive the husband of the title and possession of his real estate. This contention is based on the legal proposition that where alimony is allotted in specific property the title to such *143property remains in tbe busband, and will revert to bim upon reconciliation or tbe death of tbe wife; and tbat tbe remedy for noncomplianee witb tbe order of tbe court is attachment for contempt. As to tbe suggested remedy, tbe answer is this: tbe object of tbe judgment is subsistence for tbe wife, not tbe punishment of tbe busband. After bis property bad been dissipated or placed beyond tbe reach of tbe wife, bis imprisonment, to say tbe least, would be but ill requital for her pecuniary loss; And as to tbe other contention, we must keep in mind tbe distinction between alimony and subsistence. It is true tbat alimony is broadly defined as an allowance to tbe wife out of tbe husband’s estate •during tbe period of their separation, but technically alimony is allowed during tbe pendency of an action for divorce, or after tbe divorce is adjudged. 1 R. C. L., 865; 19 C. J., 202. It may be a proportion of tbe husband’s estate which is judicially allowed and allotted to tbe wife, or, if be have no estate, it may be a personal charge upon tbe busband. Taylor v. Taylor, 93 N. C., 420; Miller v. Miller, 75 N. C., 71; C. S., 1665, 1666. But section 1667 applies when divorce may not be in tbe contemplation of tbe wife. Tbe words “alimony without divorce” at tbe beginning of tbe section do not convert tbe “reasonable subsistence” therein provided for into technical alimony. Cram v. Cram, 116 N. C., 292. This section provides tbat tbe wife may apply to have such subsistence paid or secured, and tbat tbe judge may secure so much of tbe husband’s estate 'as may be proper for tbe benefit of tbe wife. In Crews v. Crews, 175 N. C., 173, cited by tbe defendant, tbe definition of tbe word “estate” is not restricted to “income,” but is enlarged so as to •embrace income whether arising from permanent property or earnings, for there it is clearly said tbat alimony could be assigned from both tangible and intangible property (Reid v. Neal, 182 N. C., 199); and in White v. White, 179 N. C., 592, it was held tbat tbe court may declare alimony a lien upon tbe husband’s lands, even in tbe absence of notice to bim tbat bis wife bad instituted a proceeding for tbat purpose. Conforming to these decisions, tbe judgment does not deprive tbe defendant of tbe title or possession of bis property; but in accordance witb tbe express terms of tbe statute undertakes to secure for tbe wife tbe reasonable subsistence and expenses to which bis Honor finds she is entitled.

Tbe defendant contends tbat as against tbe amount allowed for tbe plaintiff’s subsistence and expenses be is entitled to bis homestead or personal property exemption. Waiving tbe plaintiff’s contention that tbe question is not properly presented upon tbe record, we think tbat tbe defendant’s objection is without merit. Tbe defendant’s obligation "to support tbe plaintiff during tbe existence of tbe marital relation is not a “debt” within tbe meaning of Art. X, secs. 1 and 2, of tbe Consti*144tution. It is true that marriage is usually regarded as a civil contract; but in every contract of marriage there are elements which do not enter into an ordinary contract. In its binding force marriage is indissoluble, even by consent of the parties, and creates, moreover, a peculiar status, which, attending them through life, both confers privileges and enjoins duties. Among the latter is the husband’s duty to protect and to provide for his wife. This duty is not a mere incident of contract, J)ut it arises out of the very nature and purpose of the marriage relation-; and this relation civilized mankind regard as the only stable foundation of our social and’ civil institutions. Hence, both law and society demand that the marriage relation be recognized, respected, and maintained, and that the husband’s duty to support his wife and their offspring be awarded higher sanction than the strait contractual obligation to pay value for a yoke of oxen or a piece of land. The defendant, therefore, cannot escape the performance of his duty to support the plaintiff on the ground that he sustains toward her the relation of a mere debtor. Rodgers on Domestic Relations, see. 2 et seq.

We are not able to see how the last objection.can benefit the defendant. If his estate should be sold as a determinable fee, how the judgment rendered would cause the defendant to suffer loss by .reason of such sale is not easily perceived.

Upon the record we find no error, and his Honor’s judgment is therefore affirmed. Let this be certified.

Affirmed.