This case is before us on appeal by Jane Garrison Gardiner from a decree of the Chancery Court of the Second Judicial District of Jones County against her husband J. Lyon Gardiner awarding to her separate maintenance in the sum of $250 per month, and dismissing with prejudice the cross bill for divorce filed by the' appellee, J. Lyon Gardiner. The appellee has also filed a cross-assignment of errors which will be referred to later.
The record shows that the appellant was first married in 1922. That marriage was terminated by a divorce granted to the wife in 1927. The appellant came to Laurel in 1943, and at the time of her marriage to the appellee was engaged in the business of purchasing oil, gas and mineral leases for lease brokers on a commission basis. The. appellant at that time had on hand three or four thousand dollars in cash; she owned her household furniture and an automobile; and had acquired mineral interests from which she derived an income of approximately $1,000 per year. She became acquainted with the appellee sometime duiing the month of November 1945, and they were married on February 6, 1946.
At the time of the marriage the appellee had no business, profession or employment. He lived with his parents and depended upon gifts of money and capital assets for his livelihood. He had accumulated a “few thousand dollars” in a bank account, and owned a 20-acre tract of land in the Country Club Hills section of Laurel. The appellant testified that it was her understanding at the time of the marriage that she was not to be the bread winner, that it was their idea that they would live on capital. — ‘ ‘ That is what he told me before we were married.” The appellant testified that her husband had “no earning capacity,” that he could not hold a job, “that his father wras always giving him money.” She said, “We lived on capital * * * selling
Soon after the marriage the couple had constructed a dwelling house on the land owned by the appellee in the Country Club Hills section. Construction costs were paid through outright gifts to the couple by the appellee’s parents. They moved into the dwelling house after it was completed, and occupied the same as a home until their separation on December 13, 1955. The home was valued at the time of the hearing at $35,000 or $40,000. In 1948 the appellee’s mother died and he received a substantial amount of property under her will. He owned at the time of the hearing in 1956 common stocks listed on the New York exchange of the value of approximately $90,000. In 1953 the appellant inherited from her deceased sister property of the value of approximately $10,000. Some of this money she spent in buying additional furniture and equipment for the home and in air conditioning the home. She let her husband have $1,000 of the money that she had received from her sister’s estate.
It appears from a reading of the record that the marriage arrangement between the parties worked very well during the first three or four years, but after that their relations with each other became somewhat strained, and long before their final separation the parties occupied separate apartments in the house. On December 13, 1955, the appellee left the home and went to live with his father, who was also living in the City of Laurel, and on December 20, 1955, the appellant filed her bill for separate maintenance.
The appellant alleged in her bill that the appellee had left the home without cause or justification, and that he had failed and refused to provide funds for her separate support, and that she was in dire need for the
The appellee filed an answer to the appellant’s bill, and in his answer denied that he had refused to provide for the appellant since the separation. The appellee averred the truth to be that he had provided for her support and maintenance since the date of their separation, and he denied that she was entitled to separate maintenance, or that he had been unfaithful to his marital vows. After the filing of his answer the appellee obtained permission from the court to file a cross bill for divorce. The appellee then filed a cross bill for a divorce in which he alleged habitual cruel and inhuman treatment as grounds for divorce.
The cause was heard upon its merits at the regular August 1956 term of the court, and in its final decree the court ordered that the appellee pay to the appellant for her separate maintenance the sum of $250 per month,
The appellant has assigned as errors on this appeal the following: (1) That the court erred in limiting monthly alimony to $250 per month; (2) that the court erred in dissolving the temporary injunction and releasing the security therein provided for payment of the sums otherwise decreed to be paid, without making adequate provision for other security; (3) that the court erred in not requiring the appellee to repay the appellant the sum of $1150 of the appellant’s money in the hands of the appellee.
The appellee has also filed a cross-assignment of errors, as follows: (1) That the court erred in fixing the amount of $250 and other benefits for the support and maintenance of the appellant; (2) that the court erred in requiring the appellee and cross-appellant to post with the clerk of the court the 100 shares of common stock of The American Telephone and Telegraph Company, own
We have carefully examined each of the assignments of error argued on both direct and cross appeals, and in our opinion there is no substantial merit in any of them. The appellant under the facts disclosed by the record was entitled to a decree for separate maintenance; but we think it cannot be said that the amount allowed by the chancellor was either insufficient or excessive. The jurisdiction of the chancery court to make an allowance to a wife living apart from her husband for her separate maintenance is to be exercised according to equitable principles, and the amount to be allowed in any case in which such allowance may be properly made must be determined according to the facts disclosed by the record in that particular case, and is largely within the discretion of the trial judge. This Court will not undertake to substitute its judgment in such case for that of the chancellor unless it clearly appears that the chancellor has abused his discretion or has failed to apply correctly the equitable principles which govern in such cases. The chancellor had a right to dissolve the temporary injunction and to require the appellee to deposit in the registry of the court specific securities, to insure the payment of all sums ordered to be paid to the appellant, and to affix a lien upon those securities for the payment of such sums; and if necessary the chancellor may later order the stocks sold for the payment of the amounts due, or make such other orders as may be necessary to protect the rights of the wife. We find no merit in the contention of either of the parties in support of assignment No. 3 on the direct appeal and assignment No. 3 on cross appeal.
The decree of the lower court is affirmed on direct appeal and on cross appeal.
Affirmed on direct appeal and on cross-appeal.
ON MOTION FOR ALIMONY PENDENTE LITE AND ATTORNEY’S FEE.
McGehee, O. J.-
The above mentioned motion for alimony pendente lite and an attorney’s fee was filed by the appellant in this Court on October 30, 1956, but opposing counsel ivas served with a copy thereof on October 29, 1956. The appellant has submitted a brief in support of her motion to be allowed alimony ponding this appeal and for attorney’s fee in this Court. No reply brief has been filed by the appellee but the motion was argued orally before the Court by one of the attorneys for the appellant and by one of the attorneys for the appellee.
It is thought that the case on its merits may not be reached on the docket for submission and decision prior to March or April of 1957. The cause was instituted by the appellant as a suit solely for separate maintenance in December 1955. The appellee appeared and filed an answer to the bill of complaint and a cross bill seeking a divorce.
The cause was heard on its merits at the August 1956 term of the court, and a final decree was entered on September 15, 1956, granting the appellant separate maintenance in the sum of $250.00 per month instead of the $215.00 per month for the period hereinbefore mentioned which expired prior to the hearing on the merits.
On the final hearing the cross bill of the appellee was dismissed, no evidence having been offered in support of the said cross bill. The final decree of September 15, 1956, likewise granted unto the appellant exclusive use and occupancy of the residence, including the house and the 15 acre home site, all estimated to be worth $35,000.-00, also all of the furniture and household effects, the exclusive use of a Chevrolet automobile then in her possession, and required the appellee to maintain insurance and pay the taxes on the residence property, but did not require that he continue paying the utility bills at the home, including water, lights, gas and telephone. In that decree the appellee was required to pay unto the appellant a further sum of $550.00 as an attorney’s fee in the chancery court, and that he pay the costs of the court.
Both the appellant and the appellee testified that he had never been gainfully employed but that they had always lived off of his capital and the income therefrom. The proof showed that he left home and did not provide his wife with funds for her support and maintenance, except by meeting the requirements of the decree of April 19, 1956.
The proof further discloses that the appellant and appellee had expended prior to their separation approximately $800.00 or $900.00 per month to maintain their then standard of living, but he testified that it had been as low as $600.00 per month during the time they were living together. She itemized the sums that would be required to properly maintain her in keeping the maid that had been theretofore employed by them, and in keeping up the house and defraying her other living expenses, and she testified this amount would exceed $400.00 per month.
The appellant is now nearly 58 years of age, and prior to her marriage to the appellee about ten years ago she had sold oil and gas leases but that she does not now have employment or income from any source, except an
Feeling aggrieved at the allowance to her of $250.00 per month for separate maintenance under the final decree she perfected an appeal to this court to get a review of the record as to the adequacy of this allowance. Her appeal was taken with supersedeas and the appellee has not paid her anything since July 1, 1956.
Upon perfecting her appeal she applied to the trial court to allow her alimony pendente lite and an attorney’s fee with which to prosecute her appeal. The trial court denied this application on the ground that the appeal conferred upon the Supreme Court the exclusive jurisdiction for the allowance of support money pending the apxieal and for an attorney’s fee therefor.
The final decree dissolved an injunction theretofore issued which prevented the appellee from going into his lockbox at the bank or further disposing of his assets pending the outcome of this appeal, but the court required that the defendant should xhace “in the registry of this court 100 shares of the common stock of the American Telephone and Telegraph Company as security for the jmyment of all sums herein ordered to be paid, but reserving to the defendant (the appellee here) the right to receive any dividends paid thereon.”
We assume that the reason for the apxiellant having taken this apx>eal with supersedeas was to avoid any prejudice to her rights to have the decree of September 15, 1956, modified by this Court so as to increase the allowance of $250.00 per month for her separate maintenance.
At any rate, we are of the opinion that this Court has the inherent power to order that the appellee shall meet the payments which are now in arrears and to continue to pay the $250.00 per month until the final dis-X>osition of the cause in this court, but with the right
But in the event this Court should hold when it decides this cause on its merits that the trial court should have allowed more than $250.00 per month, and should fix a larger sum for her support and maintenance, the increased allowance would relate back to the renditon of the decree of September 15, 1956, and the defendant would be required to pay the difference between the amount that he may have paid under the judgment to be entered on this motion and the amounts to which the monthly payments may be then increased.
We are of the further opinion that the matter of the allowance of an attorney’s fee to the appellant on this appeal should be continued to and determined along with the determination of the appeal on its merits.
A judgment will be entered accordingly.
Motion sustained in part and continued in part.