91 So. 702 | Miss. | 1922
delivered the opinion of the court.
Appellant, Allen Elam, was adjudged guilty Of contempt of court, and sentenced to imprisonment until he purged himself of such contení])!, from which judgment he prosecutes this appeal.
The appellee, his wife, sued him for divorce, and on her motion the court allowed her alimony pendente lite; the order for the payment of which appellant failed to comply with...' Thereupon at the instance of appellee he was attached for contempt, to which attachment he answered that he was not in contempt of court, because at the time the order for the payment of temporary alimony ivas made the appellee, without his knowledge, was living in adultery with another man, and had since continuously so lived, and prayed that such order be revoked and he be discharged. On motion of appellee, appellant’s said answer was stricken from the files, and the testimony offered by appellant in support of such answer ruled out by the court.
On an application by the wife for alimony pendente lite will the fact that she is living in adultery bar her from an allowance of such alimony? If this question be answered in the negative, then it becomes unnecessary t,o decide whether a decree allowing such alimony is interlocutory or final in its nature, in order to determine the further question whether, after the adjournment of the term of court .at which it is allowed, such decree, may be revoked
In Porter v. Porter, 41 Miss. 116, the court held that on an application for temporary alimony the matters to be considered by the court were: First, as to whether the statements of the bill present a case for relief; second, whether the condition and circumstances of the wife are such as to require such alimony; third, the pecuniary ability of the husband. And the court expressly held that on such an application the misconduct of the wife was not a subject of investigation. The principles announced’ in that case were recently reaffirmed in McNeil v. McNeil (Miss.), 90 So. 327. We believe the bench and bar of the state generally have looked upon the Porter case as excluding from the scope of inquiry, on an application for temporary alimony, the misconduct of the wife, including the fact of her living in adultery. There is authority elsewhere to the contrary, but we prefer to adhere to the principles declared in the Porter case.
Affirmed.
