Call v. Call

65 Me. 407 | Me. | 1876

Walton, J.

This is a divorce suit. It is before the law court on two separate bills of exceptions. The first was taken at the October term, 1874, and the other at the April term, 1875. Both relate to allowances made to the wife for the support of herself and a minor child, the care and custody of which were decreed to her. The first question is whether exceptions lie in such cases.

I. The B. S., c. 60, § 6, declares that pending a libel, the court may order the husband to pay the clerk, for the wife, a suitable sum of money for her defense, or prosecution thereof, and to make reasonable provision for her support; enter such decree for the care and custody of the minor children as they think right; and enforce obedience by appropriate processes.

Obviously, the object of this provision is to provide for the immediate wants of the wife. The allowance of exceptions to such an order, and the delay that would be thereby occasioned, would in many cases leave the wife to starve, or force her to become a public charge, or to accept support at the hand of charity. Such could never have been the intention of the legislature. The court is therefore of opinion that exceptions to such an order do not lie ; and that the exceptions in this case should not have been allowed.

II. The same chapter, B. S., c. 60, § 7, declares that when a divorce is decreed to the wife for the fault of the husband, the court may decree to her reasonable alimony; or, instead of alimony, may decree a specific sum to be paid by the husband to her ; and use all necessary legal processes to carry their decree into effect.

The court is of opinion that the power granted in this section is addressed to the sound discretion of the presiding judge, and that exceptions to his decision do not lie.

III. The same chapter, B. S., c. 60, § 19, further declares that the court granting a divorce, may decree concerning the care, custody and support of the minor children of the parties, and with which parent any of them shall live; alter their decree from time to time as circumstances may require; and enforce their decrees by any compulsory process they may think proper.

The court is of opinion that in the exercise of this power the presiding judge may decree a specific sum to be paid by the husband to the wife for the support of a child, the care and custody of which are decreed to her ; that it is not essential to the validity of such a decree that the payment should be by installments, as the support is furnished ; though perhaps, in most cases, it would be better to make it so. The amount, as in other cases of allowance in divorce suits, must be determined by the presiding judge ; and to his decision exceptions do not lie.

For these reasons, both bills of exceptions must be overruled.

Exceptions overruled.

Appleton, C. J., Dickerson, Barrows and Danforts, JJ., concurred.