McFarland v. McFarland

64 Miss. 449 | Miss. | 1886

Cooper, C. J.,

delivered the opinion of the court.

The appellee exhibited her bill in the Chancery Court of Lincoln County against the appellant for alimony. The bill charges the marriage of the parties and that subsequently the husband drove the wife from home, and has refused to make provision for h«r support or to permit her to return to his domicile. The answer admits the marriage, charges the complainant to be of ungovernable temper, whereby the home of the defendant was made unhappy and his children forced to leave his home. It denies that the defendant compelled the complainant to leave his home, but says that she went of her own accord, and expresses the hope that she may not desire to return. On the coming in of the answer the complainant moved for alimony pendente lite and for suit money. On the hearing of this motion, over the objections of the defendant,' the Chancellor heard oral testimony to show that the wife had no separate property and what sum would suffice to support her during the litigation, and also of what would be a reasonable' fee for her attorney, and allowed alimony of eight dollars per-month and the sum of fifty dollars for attorney’s fees. From this decree the husband appeals, and assigns for error the action of the court in hearing the motion on oral proof, and also contends that in view of the denial of the husband that he put away his wife no allowance for alimony could be made until after trial of the issue thus made.

Neither assignment of error is well taken. The decree is not upon the merits of the controversy, it is one made in an interlocutory matter, addressed largely to the discretion of the Chancellor, and to require formal proof by deposition would unreasonably delay the hearing of the application. 2 Daniell’s Chy. 888 ; 3 Greenleaf on Evidence, § 331.

It is the settled law of this State that a wife may exhibit her bill for alimony alone against the husband without praying for a divorce. Garland v. Garland, 50 Miss. 694; Verner v. Verner, 62 Miss. 260; and this being the case, we see no reason why alimony pendente lite may not as well be granted under the same circumstances and upon the same principles as would be done if the relief prayed was for absolute divorce.

In suits for divorce where an application is made for temporary alimony the court will not investigate the merits of the bill “ or inquire into the truth of the facts therein alleged.” Porter v. Porter, 41 Miss. 116.

It is said that alimony pendente lite is allowed from the single fact of a pending suit for divorce, because the exhibition of the bill makes it improper for the parties to cohabit. Bishop on Marriage aud Divorce, § 384.

And, therefore, when for any other purpose a bill is exhibited against the husband and the circumstances are such that cohabitation would be improper pending the suit, temporary alimony should be given. Head v. Head, 3 Atk. 295 ; Bishop on M. & Div. 385.

Whether in view of the manifest unfriendliness exhibited by the husband to the wife by his answer, an offer by him to provide for her at his domicile pending this suit would justify the court in refusing alimony it is unnecessary to decide. He has not done so, and the temper of his answer shows that the wife would not be voluntarily received by him if she offered to return. It is his duty to provide for her, and for the purposes of this hearing (the marriage being admitted) the allegations of the bill must be accepted as true.

The reason why preliminary proof of the marriage must be made in cases in which it is denied by the answer is that marriage is the very foundation of the husband’s obligation to furnish a support. Bishop on M. & Div. 386.

Decree affirmed.