McNeil v. McNeil, No. 22058

No. 22058 | Miss. | Oct 15, 1921

Etheidge, J.,

delivered the opinion of the court.

Mrs. McNeil filed her bill in the chancery court alleging that she was lawfully married to Curtis McNeil on the 14th day of February, 1920, that they lived together until the 20th day of June, 1920; that during this time the complainant discharged her duties as a faithful and affectionate wife; that the defendant was of quick and violent temper and abusive toward his said wife; that he failed to amply provide for her support and maintenance, though fully able so to do, and that on or about the 20th day of Juné, 1920,’ said defendant, Curtis McNeil, without just .cause left the complainant and has not offered to return and has failed to contribute anything toward her support, and that the said separation took place in Lee county, Miss.; that at the time of the separation the complainant owned a small amount of property in her own name, but the said property and the income therefrom was not sufficient to amply provide a support and maintenance for the complainant and her three minor children which she has in her charge and care, being the children of a former marriage; that at the time of the marriage she owned a small home, and during all of the time they lived together as husband and wife they occupied this home furnished by her, and not any home furnished by the defendant; that at the time of the marriage the defendant was a man of means, having property of the value of seventy-five thousand dollars; that since his desertion of the complainant be bas pretended to sell and dispose of the property to his brothers, one a resident of Lee county and the other of the state of Alabama, which said deed was recorded in the records of the county; that the sale of the said property was for the purpose, and so known and understood by the purchasers, of defrauding the complainant and depriving her of her proper and just alimony, temporary and permanent, out of the property of the defendant; that the complainant is entitled to an allowance for alimony pen-dente lite and attorney’s fees during the pendency of this suit and on final hearing permanent alimony, and is entitled to have the conveyance set aside and canceled, and is entitled to a lien on said property for said alimony, and prayed for alimony pendente lite and attorney’s fees and for a decree allowing and awarding reasonable permanent alimony to be made a charge against his property and for a cancellation of the decree selling his property.

The defendant answered, admitting the marriage, and that they lived together until the 20th day of June, 1920, but denied that complainant discharged her marital duties and made a faithful and affectionate wife; denied that he was of quick and violent temper, and denied that he mistreated the complainant, and denies that he was guilty of represensible conduct as alleged, and .denies that he failed to provide for his wife while he lived with her, but admits that on the 20th day of June he left the complainant, and admits that since he left her he had made no offer to return, and that he has failed and refused to contribute to her support or to maintain her. He admits that at the time of the marriage the complainant owned some property, and denies that the income of the property is not sufficient to provide for her support and maintenance, and alleges that the children in her charge have property ample for their support. He admits that at the time of his marriage he was a man of means, and that he 'was worth at the time of the marriage about forty thousand dollars, and is now worth about thirty thousand dollars, admits that he disposed of the property as alleged in the bill with the intention of defeating complainant’s claim, but denies that it was so known to the other defendants, and alleges that he was so liarrassed, nagged, and mistreated by the complainant, and was in such a nervous state, that he was really unfit for the transaction of the business, and for fear that he was about to lose his mind he made uf) his mind to sell the property, and not only leave the complainant, but also leave the state, and to that end he sold the said property to his brothers, the other defendants. He then avers that because of the mistreatment of him by the complainant and her infidelity, harassing, and nagging, cursing, and abusing him, and her attempt to poison him, he did not believe that the complainant Avas entitled to any right of interest nor support out of his property, and Avithout consulting counsel he took the step of selling his property with the view of preventing complainant from obtaining his property or any part of it. He denies that she is entitled to alimony pendente lite and attorney’s fees during the pendency of the suit or permanent alimony on final hearing. He avers that the complainant had property in her own right sufficient to support and maintain her during the pendency of the suit and to employ counsel to represent her in the said cause, and that since making the said sale respondent has concluded to remain here, and by arrangement with his brothers has reacquired the property subject to such debts as he OAves.

The defendant with his ansAver filed a cross-bill alleging certain causes for divorce against his wife, which are unnecessary to set out in this opinion, and prayed for a divorce. Testimony Avas taken which shoAved that the defendant, and a cross-complainant, Avas Avorth from thirty thousand to forty thousand dollars, and that the complainant had a home in AAdiich she lived Avith her children worth five thousand or six thousand dollars, and that she leased tAVo rooms of her residence for twenty dollars per month, and that she owned diamonds worth from seven hundred to nine hundred dollars, that she received from other sources about thirty dollars a month for herself and children, and that her father permitted her to draw checks on his bank account for her needs by signing his name by her, and also that her father had bought certain property, taking title in his own name, the rents and profits of which he permitted her to use, that her taxes on her home amounted to about two hundred dollars a year, and that it required at least one hundred dollars per month for her to live on.

The chancellor refused to allow alimony pendente lite or to allow attorney’s fees to represent the complainant in the alimony suit and to procure a cancellation of the con•veyance set out in the hill and admitted in the answer, hut he allowed five hundred dollars as attorney’s fees for defending the divorce issue in the cross-hill. From this decree the appellants prosecute the direct appeal, and the appellee a cross-appeal.

It is contended hy the appellants that, as the homestead is worth more than three thousand dollars, exemption allowed hy law, and inasmuch as she had some diamonds given her hy the appellant prior to their marriage and some other small means, as set out, it was improper to allow any attorney’s fees in defending the divorce issue. While the appellee and cross-appellant contend that under the facts of this record the chancellor should have allowed a temporary support and counsel fees to prosecute her alimony suit.

In Porter v. Porter, 41 Miss. 116" court="Miss." date_filed="1866-10-15" href="https://app.midpage.ai/document/porter-v-porter-8257773?utm_source=webapp" opinion_id="8257773">41 Miss. 116, the court held that on application for alimony pendente lite the court will consider; First, whether the statements of the original hill present a case for relief; second, whether the circumstances of the wife are such as to require an allowance; and, third, what is the pecuniary condition of the husband. Applying this test and considering the admissions of the answer, we reach the conclusion that the wife was entitled to alimony pendente lite and to counsel fees for prosecuting her suit as well as for defending the cross-hill. We do not think under the circumstances of this record that the wife was required to sell or incumber te small property which she owned, because, under the issues made, the duty of the husband to support the wife is clearly established. He has a much larger estate than the wife and is amply able to care for her. It is admitted by the husband that he left his wife, and that he is not contributing anything to her support and has not done so since leaving her. We do not think it proper to consider mere gratuities given to the complainant by her father. The duty to support the wife rests'upon the husband, and he cannot avoid the performance of this duty by showing that the father will probably see that the wife does not suffer because the father is able to do so and is manifesting a disposition to meet the wants of his daughter. She should not be required to incumber her home nor to sell the same and take a cheaper or less expensive establishment, because on the proof in this record the residence is not a more costly one than she is entitled to have, taking her husband’s financial ability as a test. The income as shown in the record that she receives as of right is less than enough for her support under the proof before us. We think that she should be entitled to have her income supplemented by at least fifty dollars per ' month, and that the judgment allowing counsel fees of five hundred dollars will be permitted to stand as counsel fees on the facts of this record, the proof showing that counsel fees for prosecuting and defending the suits fully would be from one thousand dollars to one thousand, eight hundred dollars. In view of this fact, we think that five hundred dollars will meet the requirements for attorney’s fees as a temporary proposition, and on final hearing the court can make such additional allowance as to both alimony and counsel fees as the case may call for after hearing all the facts developed.

There is nothing in Ross v. Ross, 89 Miss. 66" court="Miss." date_filed="1906-11-15" href="https://app.midpage.ai/document/ross-v-ross-7989671?utm_source=webapp" opinion_id="7989671">89 Miss. 66, 42 So. 382, or in Evans v. Evans, 88 So. 481" court="Miss." date_filed="1921-03-15" href="https://app.midpage.ai/document/employers-liability-assur-corp-v-american-packing-co-7993971?utm_source=webapp" opinion_id="7993971">88 So. 481, that conflicts' with our views here. A critical study of Ross v. Ross shows that the court had in mind the proposition which we announce in the present case. We do not subscribe to the doctrine, as an invariable rule, that the court can only consider the incoine of the wife in determining whether she should have temporary alimony. The wife might in many cases have considerable property from which temporarily but small income was received,’ and might be amply able to support herself pending the trial of the case without jeopardizing her future support in the case of the death of her husband, which, of course, would stop the allowance of alimony further than it had already accrued. In the case before ns the husband’s means greatly exceed the means of the wife, and his duty to support her is clear. He left the wife instead of her leaving him. No question arises here where the husband is undertaking to furnish at the domicile the needs of the wife.

The judgment of the lower court will be affirmed on direct appeal, and will be reversed on cross-appeal, and a judgment entered here for fifty dollars per month from the filing of the suit, to continue until the final hearing.

Affirmed on.direct appeal, and reversed and remanded

on cross-appeal.