36 Ala. 391 | Ala. | 1860
Lead Opinion
The defendant in this case, after the lapse of a little more than one year from his intermarriage with a young lady in the freshness of early womanhood, utterly abandoned the nuptial bed, and subjected his wife to an almost total exclusion from social intercourse with him. This singular state of self-imposed conjugal estrangement, for which we can deduce from the testimony no justification, commenced at the very time when the birth of a child should have drawn him into a closer and more endearing union, and continued during a period of more than four years, and until a final separation occurred. It is a teaching alike of human experience and of the law-books, that in7 the marriage state contented affection is one of the surest safeguards, and most satisfactory evidences of fidelity; while causeless alienation, and unaccountable and unreasonable aversion, are temptations to infidelity, and often the accompaniments and results of it. — Bishop on Mar. and D. § 420; Richardson v. Richardson, 4 Porter, 674. St. Paul, in the 7th chapter'of his fjrst epistle to the Corinthians, has set forth the regular enjoyment of wedded love as a shield oí virtue; and Milton says, that by it
“Adulterous lust was driven from men, Among the bestial herds- to range.”
Then, whether we look to the legal authorities above cited, or to the teachings of nature and holy writ, we are authorized, in a case of conjugal conduct like that of the defendant, to yield a more easy credence to circumstances which impugn the chastity, and may more properly give suspicious facts an unfavorable construction.
The argument, that the girl with whom the adultery is alleged to have been committed, bad not attained the age of puberty, is not supported by the testimony.
The conduct of the complaining wife, as developed in the circumstances of this ease, is certainly a proper matter of consideration. The manner in which the complainant spoke of her husband, in a letter addressed to an unmarried gentleman, who was her relative, and spoke of him and of her marriage to a gentleman with whom she had once had a matrimonial engagement, was extremely indiscreet and reprehensible, but involved no moral turpitude. While these acts can not be passed by without condemnation and censure, as inconsistent with the conduct of a prudent spouse; yet we have no evidence of the occurrence of such conduct on other occasions, and those acts seem to stand as blots upon a history otherwise blameless. Besides, it is some palliation of her improper conduct.in those particulars, that it did not occur until her husband had withdrawn every manifestation of affection, and deprived her of his counsel. For such misconduct, perpetrated under such circumstances, justice does not demand the denial of a liberal allowance to her. The defendant imputes a criminality to his wife, which would justify his deportment to her, and deprive her of all claim to his liberality, or to the liberality of the court; but, if such criminality existed, it is his misfortune that he has not been able to prove it, and the court must act upon the case as made by the testimony.
According to the statement of the defendant’s answer, his wealth now amounts to about $46,000. He has two children ; both sons; one the child of a former marriage, the'other the fruit of his .marriage with the complainant. The amount allowed by the chancellor no doubt exceeds the value of the dower and distributive share which the complainant would have received had she survived her husbánd; and it would be excessive, in the absence of special circumstances justifying a.departure from the rule above indicated. Such special circumstances are found in this case. The defendant, with'a generosity which we commend, has provided liberally for his oldest son, who is now over thirty years old ; and that provision probably exceeds the amount of the allowance to the complainant. The defendant, without any cause which we can gather from the evidence, disclaims the paternity of the child of his present marriage, and exhibits a sentiment towards it which precludes all probability of .his voluntarily contributing to its support and education, or permitting it to share in his estate. . The wife’s expenses and responsibility will on that account be increased, and the duty must devolve upon her alone of bringing theJ child forward when he attains his majority; and the child can never receive, any of his father’s estate, save through its mother. By virtue of the chancellor’s decree, the mother, with her son, will get a sum less, perhaps, than, that which the defendant’s older son has already received, and
We entertain no doubt of the authority of the chancellor to secure the payment of his decree, by declaring a lien upon the defendant’s property.
An order allowing to the wife temporary alimony and the expenses of her suit, is made without regard to the final decree, or to the question of right upon the merits of the cause. — Richardson v. Richardson, 4 Porter, 467; Bishop on Mar. and D. 581; Wright v. Wright, 1 Edw.
This point will be more striking, if we suppose the case of a final decree in favor of the. husband, and yet an order allowing temporary alimony and the expenses of suit, to the wife. Could the husband, in such a case, appeal from a final decree in his favor, and reverse the orders for alimony and expense money ? ■ •
' Again ; the ground upon which the wife is allowed alimony pendente lite is, that it being improper for her to cohabit with the husband duriug the suit, the court must see that- she has the means of living while the suit is in progress before it; and the ground upon which the wife is allowed money, with which" to defray her expenses of suit, is, that as the husband has all the money, and the wife none, she would be unable to litigate with her husband, unless by the compulsion of the court the husband supplied her with the requisite means. — Bishop on Mar. and D. 569, 571. Now, it seems to me a most singular proposition, that the alimony should be given to the wife to .enable her to live-during the -shit, and the expense-money to carry on the litigation, and yet that those allowances should be subject to revision upon appeal from the final decree. But my brethren think, that the appeal from the final decree brings up all the-order compensating the complainant’s counsel.
While there is a difference of opinion as to what is brought before us for revision by an appeal from the final decree, the court is unanimous in the opinion, that the order for temporary alimony and the expenses of the suit is revisable. This court revised such-an order in Ex parte King, (27 Ala. 387;) and such orders were the subject of
Tlie allowance of a solicitor’s fee stands upon a different footing. That must be restricted to the actual reasonable value of the services rendered, or to be rendered. The chancellor, therefore, erred in allowing the fees of the wife’s solicitors, without proof as to their proper amount, and without an inquiry through the register. The chancellor did not have before him the facts necessaiy to enable him to determine the amount of the fees. 2 Barb. Ch. Pr. 268.
Though it is the usual and better course for the temporary alimony to be made at au early stage of the cause, it may be made upon the final hearing. — Frankfort v. Frankfort, 3 Curteis, 715, 7 En. Ec. R, 558; Bishop on Mar. and D. § 589.
The appellant must pay the costs of the appeal.
The majority of the court differ from the chiefjustice only on a single point, necessary to be noticed in this opinion.- As the whole court concur in the opinion, that the allowance made to Mrs. Jeter, for alimony, or support pendente lite, was not unreasonable; and, as a consequence, hold that, if that question be properly before us, we all unite in affirming the chancellor’s decree in that respect, — we need not, and do not, announce any opinion on the question, whether the appeal brings that question before us. Nor do we announce what would be our opinion, impending the litigation, and before final decree, the chancellor had ordered Mr. Jeter to pay to Mrs. Jeter’s next friend a sum of money to defray the expenses of litigation. That question is not presented by this record.
In the present ease, no order was made requiring' Mr. Jeter to pay the expenses of the suit, while the litigation was in progress. In the final decree, and only in the final decree, the chancellor ordered that Mr. Jeter should pay for legal services rendered by two law firms, to each firm a specific sum, as a fee in this ease. This was done without any reference to ascertain the amount; and the decrees were made directly in favor of the solicitors. There being a final decree in this cause, of which the order in question is a part, from which final decree an appeal is prosecuted, we think this question is properly before us. In thus holding, we think we are supported by many analogies in our system, and that we best pursue the harmonies of our law of appeals. For instance : In a suit in which a divorce is granted, the chancellor frequently makes a final
The error of the chancellor on the question of solicit- or’s fees, has been pointed out by the chief-justice.
Note by Reporter. — On a subsequent day of the term, in response to an application for a rehearing by the appellant’s counsel, the following opinion was delivered:
Rehearing
A rehearing is sought in this ease, upon the ground that the statute now in force does not permit the rendition of a decree for a sum of money in gross to a party obtaining a . divorce, but requires that the decree should merely provide for her support arid maintenance. This question is covered by the decree in King v. King, (28 Ala. 315,) and we might content ourselves by referring, to the doctrine of stare decisis. But, as we think the decree in King v. King can be vindicated by fair reasoning, we prefer, not to dispose of the questions raised in a manner so summary.
The section of the Code, under which the decree for a sum of money in gross was rendered in this case, is in the following words: “ If the wife has no separate estate, or if it be insufficient for her maintenance, the chancellor, upon granting a divorce, must decree the wife an allowance out of the husband’s estate; taking into consideration the value thereof, and the condition of his family.” Code, §1971. Alimony, in the ecclesiastical law, was a provision for the maintenance of the wife; but the defi
The statute of Ohio, upon the same subject, uses precisely the same term that is found in ours; and the supreme court of that State has decided, that under it the court may reader a decree for a gross sum, or for installments, payable at stated intervals. — Pratt v. Pratt, 9 Ohio, 37.
Judge Stone assents to the result attained, mainly on the authority of King v. King, but does not concur in the reasoning.
The petition for a rehearing is overruled,
•Note by Reporter. — The -appellant’s counsel after-wards made another application for a rehearing, on the ground that the record showed that the complainant had a separate estate, while it did not appear that the value
It appears that Mrs. Jeter had, at the time of the marriage, some property; which, under our statute, became her separate estate. No reference was made to the register, to ascertain the value of this separate estate; nor does it appear that its value was shown to the chancellor, by any evidence taken in the cause. But this objection to the decree was never made, nor was the attention of the court called to the facts alluded to, until after the opinion of the court had been delivered, a petition for reheai’ing on other grounds overruled, and the parties had, by mutual agreement, made a settlement of all the matters involved in the litigation. On this settlement, the complainant and the defendant made mutual concessions, and the defendant obtained material advantages, to which he was not entitled under the decree of the chancellor. This voluntary settlement, the stipulations of which had been fully performed on both sides, precludes a reconsideration of the cause in this court. But the majority of the court think that, under the circumstauees, the 'decision in this cause should not be construed as settling the rule, that in cases where the wife has a Separate estate, a decree for an allowumee out of the husband’s estate can be sustained on appeal, unless it appears that the value of such separate