10 Fla. 308 | Fla. | 1864
delivered tbe opinion of the Court.
Tbe appellee filed her bill in tbe Circuit Court of Leon pounty, praying for a divorce a vinculo from her husband, tbe appellant, alleging, as tbe grounds of her complaint, extreme cruelty and total abandonment. Tbe bill also asked for an allotment of permanent alimony, a suitable maintainance pendente lite, and an allowance for expenses incurred in tbe prosecution of tbe suit, and in searching for and visiting tbe children. Tbe answer, denying tbe allegation of cruelty, confesses tbe abandonment, and submits tbe ques
The first exception taken by the appellant is, that under the laws of this State no allowance can be made for permanent alimony, where the divorce is granted exclusively upon the ground of abandonment, and the following section of the statute is cited to the point:
“ Sec. 10. When a divorce shall be decreed on account of the' parties being within the prohibited degrees, or. for the cause of adultery or extreme cruelty, the Court shall and may, in every case, take such order touching the care and maintainance of the children 'of that marriage, and also touching the maintainance and alimony of the wife, or any allowance to be made to her, and, if any, the security to be given for the same, as from the circumstances of the parties and nature of the case may be fit, equitable and just.”- — ■ Thomp. Dig., page 223.
It will be perceived by reference to the 8th paragraph of the same section, that though abandonment, or “ wilful, obstinate and continued desertion by either party for the term of a year,” is enumerated as one of the causes for which a divorce may be granted, yet in the paragraph above cited making provision for the allowance of alimony, it is omitted, from the various grounds mentioned, upon which such allowance may be made. In this state of the statute, the counsel for the appellant insists that, inasmuch as the Court of
The doctrine to be deduced from the foregoing views, so lucidly expressed, is, in our opinion, diametrically opposed to the position assumed by the counsel in the case at bar. If* we understood that position, it was that the jurisdiction of the Chancery Court over the subject of divorce, being derived wholly from the statute, it could grant alimony only in such cases as were specified in the statute. The doctrine of the case cited is, that notwithstanding the jurisdiction is derived under the statute, yet that the rights conferred by the marriage and the obligations it imposed coniAmie, where the Legislature hasfaáled to interfere. Upon that principle, the Court decided, in that case, that though'the statute-authorizing- the granting of the divorce did -not, in terms, preserve the dowable capacity of the wife, yet inasmuch as she possessed that capacity at common law, being an incident of the marriage, she could not be deprived of it but by the interference of the Legislature. Applying the doctrine of that case to the case under consideration, it will be manifest that the right of the Chancery Court to grant alimony, even in the total absence of any express authority in the statute to do so, is fully sustained. The dowable capacity of the wife grows out, and is an incident, of the marriage. The right to alimony is no less an incident of the same. It is true that by tbe common law the amount of the former is fixed and certain, while that of the latter is variable and controlled by the pecuniary circumstances of the parties, yet, when these have been ascertained, tbe right to demand is as indubitable as in the former case.
Tbe error of the argument arises from the assumption,
The counsel for the appellant, in further maintainance of his position, invoked the maxim, expressio unius exebusio alierius, and very pertinently inquired: If it were the intention of the Legislature not to exclude the wife from alimony, when the divorce should be decreed on the ground of -abandonment by, or desertion of, the husband, why was that particular ground omitted in the 10th paragraph of the statute ? The counsel, in pressing this inquiry, proceeded to assign some of the reasons which might probably have operated upon the Legislature, and induced them to make the omission. It was forcibly argued that 'cases of abandonment or desertion frequently originated in mere pettishness
Another argument tó show that the reason assigned for the omission could not have operated to influence the action of the Legislature, may be found in the act itself. It will be seen that the section of the original act — in which the causes of divorce, and also the paragraph now under consideration, are both embraced — prescribed three years as the term of abandonment, instead of one, to which it was changed several years afterwards. — Duv. Comp., 81. This length of time conclusively negatives the idea that their object, in making the omission, was to restrain the wife from precipitancy in her application for a divorce.
The counsel for the appellant insisted, further, that even if it should be determined that, the Court could decree an allowance of alimony in this case, yet that the decree must be set aside, because the mode prescribed by the statute for ascertaining the amount of the allowance to be made had not been observed, and he cited the 14-th‘ and 15th para-' graphs of section 3, in Thomp. Dig., page 224. By reference to the original act, contained in Duval’s Compilation, page 82, it- will be seen that the two paragraphs were intended to apply exclusively to the “ County Court,” which was then in existence, and which had no jurisdiction in the matter of divorce. The alimony, there referred to, is not such as is incidental to a decree for divorce. The only design of these two paragraphs is to provide for the allowance of a suitable support and maintainance of the wife — in case of desertion by the husband, or his open adultery, or cruel, barbarous and inhuman treatment — without driving her to apply for a divorce. The author of the Digest, in preserving the text of the original, very properly inserted “Circuit
We have thus, with some care and deliberation, considered the several points made in support of the first exception taken to so much of the decree as grants the allowance of alimony, and are of the opinion that the same is not well taken and ought to be overruled.
The second exception taken- by the appellant is, as to the amount of the allowance for alimony. Under this head, it was'insisted that the wife having a sepa/rate estate adequate to her comfortable support, no allowance for alimony ought to have been decreed. Such, undoubtedly, is the law, (see Bright, on Husband and Wife, p. 359,) but the difficulty on this point is one of fact, arising out of the' conflict of evidence. Some oi the witnesses are of the opinion that the •separate property ought to produce an income of from fifteen hundred to two thousand dollars annually. Others represent it as unproductive, and make the estimate as low as five or six hundred dollars. ' In this conflict of evidence, it would be highly improper for an appellate tribunal to interfere With the discretion of the Chancellor, who, from the nature of the case, is presumed to be better qualified to judge of the degree of ei’edit to be given to the testimonythan this Court can possibly be.
It was also insisted, under this exception, that the husband, owning no property in his own right from which an income could be derived, was not liable for alimony to the Wife. Here, again, the evidence is equally conflicting. (¡>ne of the witnesses, examined for the appellant, testifies that he was in possession of one thousand acres of land and about fifty slaves. Another of his witnesses testifies that he manages this property for the sole Benefit of his children, and that he has no interest in it. The Master’s report shows that this property originally belonged to the appellant, and
It may not be inappropriate, in this connection, to refer to some of the general principles appertaining to the allotment of permanent alimony, as they are to be found in the books treating on that subject. 'Shelford, in his work on “Marriage and Divorce,” page 592, (margin) says: “The law has fixed no definite proportion of the property of the hukband and wife to be allotted for permanent alimony, the Court must, therefore, look at all the circumstances together, for no two cases are alike, in order that it may award what is fair and just between the contending parties. Although' the amount of alimony to be allotted is in the discretion of the Court, it is a judicial and not an arbitrary discretion, which is to be exercised from an equitable view of all the circumstances of the case. A much larger allowance is to be made for permanent alimony, than for alimony pending suit. Where the delinquency of the husband has been established, and the wife is the injured party and separated from the comfort of matrimonial society by her husband’s misconduct, she will be ■ liberally suj>ported. The law has laid down no exact proportion — it gives sometimes a third, sometimes a moiety, according to circumstances.”
The same author, at page 595-6, says: “Upon a point where there is no other rule or criterion to guide than boni ori g/rbitrium, it is only upon a strong difference of opinion where the Court of Appeal would be disposed to disturb the sentence. If the sentence of the Court were mbr&rm either way, the Court of Appeal would interfere — in the one case, to modify or reduce; and, in the other, to augment the alimony — so, in either case, on that supposition egregiously misallotted. But it is not any mere slight difference of opinion as to the propriety of the allotment in point of amount, which would justify such an interference. The
Guided and controlled by the doctrines thus announced, we are of opinion that (with the lights furnished by this record) this Court could not, without the exercise-of an arbitrary discretion, undertake to interfere with the judgment of the Chancellor in this particular.
¥e have thus disposed of the exceptions presented on behalf of the defendant below, and are now prepared to address ourselves to a consideration of those which are presented on behalf of the complainant. The first exception is in these words, viz: “ That the Court did not render a sufficient allowance (for) support and alimony to said complainant.”
It will be readily perceived that this exception is but the converse of the second exception presented by defendant, and involves the same principles. Having already fully considered and discussed those principles, it is deemed unnecessary to do more than to say that this exception must share a like fate. It is, therefore, overruled.
The second exception is, “ that the complainant was not allowed for expenses of suit, and of searching for her children.”
It is a well established principle of law, that in suits for divorce, whether brought by or against the wife, she is to be considered a privileged suitor, and is entitled to be subsisted
In this case the wife was in the enjoyment of a separate estate, consisting of two hundred acres of land and fourteen or fifteen slaves, besides an undivided interest in other lands. As before remarked, the evidence as to the available income' from this estate is extremely conflicting, and how far the possession of this separate. estate operated in inducing the Chancellor to deny an allowance of the expenses asked for, it Is impossible for this Court to ascertain. It is, well settled, however, by the authority before cited, that ifj in his opinion, she enjoyed a separate income, competent for her' maintainanco dujjng the pendency of the cause and for the expenses incurred in the prosecution of the suit, he was right in refusing the allowance. His means of coming to a correct judgment on the point are superior to those enjoyed by this Court. It may'be said, however, that the allowance of permanent alimony negatives the idea that the enjoyment of the income from her separate estate could have had any influence in causing the denial. But this does not follow as a legitimate conclusion, for it is well established that the ah lowauce of alimony pendente Ute is much less than that granted for permanent alimony. So that it may have .been the opinion of the Chancellor that her separate income was sufficient for her expenses and the maintain anee of her suit, but not sufficient as a permanent allowance; and, with such
After full and mature consideration of all the circumstances of this case, as developed in the record, this Court is not inclined to interfere with the discretion exorcised bj the Chancellor in the granting of the decreo. It is therefore ordered, adjudged and decreed that the decree entered in this case, or so much thereof as has been appealed from, he affirmed in all particulars.
Counsel for appellant filed a petition for rebearing of tlie cause, which was not granted.