82 So. 417 | Ala. | 1919
The question on which the decree of the court is challenged is the amount allowed to the wife pendente lite and as permanent alimony.
The complainant testified she had no knowledge of the extent of her husband's business or the amount of his earnings; that they had lived together in a state of matrimony for about 19 years prior to their separation in February, 1916; that during this time he had contributed $150 a month to the support of his family and, in addition, paid certain sums for clothing, dental bills, and the like; that $125 was the smallest sum on which she could sustain herself in the sphere of life her husband had maintained her; and that the net income from her properties was $41.75 a month, or an aggregate of $501 a year. By the contribution of the husband in the amount and for the long term indicated, he fixed a standard or "condition" in life for his family that is not successfully contradicted or overturned in this proceeding; nor does it appear that such "condition" of his family was inconsistent with their former station or condition in life and was unnecessary to their maintenance at the time of the rendition of the decree. A man owes a duty of such maintenance to his family as well as to the state; not only that he keep them from becoming a charge upon the body politic (Munn v. Illinois,
Allowances to the wife pending a suit for divorce and decree for alimony are of several classes: (1) The statutory allowance for maintenance to the wife pending the suit for divorce "out of the estate of the husband, suitable to his estate and the condition in life of the parties," and secured to the wife as a matter of right. Code 1907, § 3803; Coleman v. Coleman, 73 So. 473, 475.1 (2) The allowance for maintenance of the wife by alimony after separation when no divorce has been granted, being independent of statute and granted under the original jurisdiction of the chancery court. Glover v. Glover,
For general authorities on the necessity and right to modify such a decree, to make provision for the support of children when no such provision was contained in the original decree, see Spain v. Spain,
The case of Smith v. Smith,
"The right, then, to an allowance in favor of the wife, upon a final dissolution of the marriage, depends on our statute. The statute in force at the date of the divorce and the allowance of what is called alimony in the decree in this case was in the following words, to wit: '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 estate of the husband, taking into consideration the value thereof, and the condition of his family.' Code, § 1971; Rev. Code, § 2361. This 'allowance' to the wife is not, in fact, alimony, in the sense *169 of the ecclesiastical law of England; but it is more strictly an arrangement in lieu of a division of the estate of the parties, so as to return to the wife her just portion of that property which mutually belonged to both during the marriage, and which the labor and care of both may have equally contributed to procure and preserve. This allowance was intended to supply the wife with the means of commencing life anew. * * * Such purpose could best be accomplished by making such allowance absolute and permanent. * * * The form and manner of granting the allowance in this case cannot now be inquired into or altered. * * * That the allowance was a sum certain, to be paid from year to year, does not change the character of the decree. This, in a decree for divorce from bed and board, is such a decree as may be subsequently modified. Shef. Mar. Div. p. 596, and cases there cited. But this is not such a case."
This view is not in harmony with our subsequent decisions. In Edwards v. Edwards, supra (
"That part of the decree which relates to what is called permanent alimony, we leave as the chancellor fixed it, $30 semiannually, making $60 per annum; subject, however, to such alteration as the chancellor may hereafter make, to be dictated by changes that may occur in personal or property relations. Williams v. Hale,
To like effect was the announcement in Jones v. Jones, supra (
"If the court had the right and power under its former decrees in the cause to control the enforcement and execution of said decrees, then there can be no question under the facts of the rightfulness of the decree here appealed from. It is quite clear that, under the provisions of the former decree, the right to control the enforcement and collection of the same was reserved to the court, and in cases of this character we think the propriety of such reservation by a court of equity is highly proper, as such court has not only the power, but should always in its exercise so mold its decrees that justice is meted out without oppression, especially in provisions for payments of money in the future where the ability to make such payments are dependent upon future contingencies. What was said by this court in Edwards v. Edwards,
Thus was the Smith Case in effect modified. If, however, the decree for alimony is one sum in gross and payable at one time, and the decree is not kept open by its terms, after expiration of the time fixed by law for finality of decrees, it is not thereafter subject to change by the court.
As to the consideration that may be given by the court to the husband's ability to respond in a proper allowance made for the maintenance of his family, pending the suit for divorce, in Ex parte Whitehead,
The citation made by Judge Sayre of 2 Am. Eng. Ency. of Law, p. 123, finds its place under section IV on "Permanent Alimony." The text is supported by abundant authority, and is as follows:
"(b) Circumstances determining:
"(1) Estate and Faculties of Husband. — In determining the amount of alimony to be allowed, the court must inquire into the circumstances of the parties, and particularly into the financial condition of the husband, his ability to earn money, the amount of his property at the time, and his annual income. The fact that the husband has no estate is no ground for denying the wife alimony; but, where he is shown to be able-bodied and capable of making *170 money, the court will compel him to provide the wife with support according to their circumstances and condition in life."
That is, he may not be compelled by personal labor to earn money, yet, if he does, to pay it to his wife as decreed. In 2 Bish. Mar. Div. §§ 455, 457, the author collects authorities on the subject of "What may blend with the faculties to determine the amount," such considerations for the court being the wife's income or other means of support possessed by her, the joint labor and capacity for work of the husband and wife, their joint income; things blending with income, as personal labor, sources from which the common property came, whether there are children or other relatives to be supported or educated and on whom the burden thereof devolves; the nature, extent, and clearness of proof of the husband's delictum, the demeanor and conduct of the wife toward the husband during the cohabitation; the ability of each party to earn money; the wife's forbearance and waiting to bring her suit; the husband's condition in life, health, and needs; the wife's condition in life, health, and needs; the ages of the parties and the cause of divorce (Lovett v. Lovett,
The defendant did not testify. It is true that complainant did not know the value of the husband's stock of drugs, or the amount of his earnings. She did, however, testify to the fact that for many years prior to the date of their separation the husband's earnings and personal capacity or ability for earning money, in connection with his surrounding circumstances and condition of his business, were sufficient to enable him to contribute more than $150 a month for the support of his wife and children. There was no evidence tending to show that the value of his estate or the amount of his income or personal earning capacity had decreased since their separation. The defendant knew whether his properties had been diminished or dissipated, whether his condition in life or personal capacity to earn money had changed, and whether he was able to continue the like contributions for the support of his family. He may show the fact of such changed conditions, if it be a fact, on proper application to the court.
We have carefully considered the evidence, it being read in extenso to the court, and are of opinion that it was sufficient to show the estate of the husband, taking into consideration that the condition of his property, personal earning capacity, and the condition of his family warranted the finding of the chancellor, after giving consideration to the separate estate of the wife and its insufficiency for her maintenance. Jones v. Jones,
The allowance for reasonable attorney's fees to the wife is held by our court not to be specifically provided for by statute, but is governed by general principles of law, and depends "on the good faith of the proceedings, and the probability of success." Coleman v. Coleman, supra. No question as to this allowance is presented by the decree, since, by agreement of counsel, the reasonable compensation for complainant's solicitors was fixed and became a part of the decree.
The decree of the circuit court, in equity, is affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.