23 So. 2d 889 | Miss. | 1945
This suit is one by Annie Berryhill seeking separate support and maintenance from her husband, Adam Berryhill, without a prayer for divorce. The bill of complaint alleges that the defendant had deserted her for a period of nearly five years, moving to another county, and leaving her on the charity of her friends and relatives for support and maintenance. There are also allegations as to the defendant's ownership of property and ability to support and maintain the complainant. The bill of complaint also contains a prayer for a vacation hearing for "temporary alimony, alimony pendente lite and for counsel fees," and alleges that the granting of such relief in vacation is urgent and necessitous. *765
Section 2742, Code of 1942, provides, among other things, that "the chancellor in vacation may, upon reasonable notice, in urgent and necessitous cases, hear petitions for temporary alimony and temporary custody of children and make all proper orders and decrees thereon."
The jurisdiction of the chancellor to hold the vacation hearing in the instant case is challenged because it developed at such hearing that the complainant was receiving an allowance from the Federal Government of $37 per month which had been allotted to her at the instance of a son-in-law in the military service; that since she was an elderly negro woman, living on the farm, the said allowance from the Federal Government was such as to defeat her claim that it was urgent and necessitous that relief be granted to her in vacation in advance of a hearing on the merits of the case. It was held, however, in the case of Johnston v. Johnston,
In the instant case, hearing was had in vacation and a decree rendered whereby the complainant was awarded $50 per month as temporary alimony and the sum of $35 as an attorney's fee, but it was provided in such decree that there should be credited on the said $50 per month temporary alimony "the sum of such payment as may be collected by the said Annie Berryhill each month from *766 the U.S. Government on account of contributions or allotments by the son-in-law of the said Annie Berryhill."
It will be readily seen that the decree is not therefore definite and certain as to the amount which the defendant Adam Berryhill was required to pay each month. The son-in-law, by reason of prospective advancement in rank, had the right to increase such allowance or to have the same decreased for any reason satisfactory to him. Moreover, the effect of this provision in the decree was to leave it to the determination of the clerk of the court as to whether the wife had in fact received this allowance at the time any monthly installment on the alimony became due. In this respect, the decree was indefinite and uncertain and therefore unforceable.
In the case of Todd v. Todd,
Therefore, because of the fact that the vacation decree for temporary alimony is indefinite and uncertain in the particular above pointed out, the cause must be reversed and remanded.
Reversed and remanded. *767