129 So. 3 | Ala. | 1930
Lead Opinion
The appeal is from a decree granting divorce and awarding permanent alimony, temporary alimony pending appeal, attorneys' fees, and vesting in appellee certain personal property.
The appellee abandoned appellant on May 5, 9, or 10, 1929, on the grounds of alleged adultery and habitual drunkenness, and appellant denied such facts, and alleged that, if they be true, appellee had condoned such alleged adulterous acts or had connived therein or therewith. Section 7413, Code; Smedley v. Smedley,
It is insisted by appellant that the suit for divorce was not for the purpose of redressing matrimonial wrongs asserted in the pleadings and evidence; and that she prosecuted the suit under such circumstances as to be a fraud upon the law and under the doctrine of recrimination — "not in good faith," and merely for the purpose of obtaining money from her husband "without just and reasonable foundation" or prompted by malice or oppression toward her husband — and should be denied admittance and success in equity. Brindley v. Brindley,
It has been held that the awarding of permanent alimony in gross in sums of about one-half of the net worth of the husband was excessive. Farrell v. Farrell,
The general rule, or that of our cases from Smith v. Smith,
"* * * The 'allowance' contemplated by our statute is something more than a mere substitute for the current maintenance and support normally due from the husband to the wife during their joint lives and the continuance of the marriage relation. This is confirmed by our decisions which have adopted as a standard basis for estimating the allowance, subject, of course, to various qualifying circumstances, the approximate value of the wife's interest in the husband's estate if she were his surviving widow. Jeter v. Jeter,
"In accord with this theory of the nature of permanent alimony, especially where awarded in gross, it is said that:
" 'The amount of the allowance ordinarily varies from one half of the husband's estate to a third, or even less, although it would seem that where the wife is entitled to alimony and he is possessed of an estate, it would be improper under any circumstances to give her less than what her dower interest therein would have been, for the reason that he should not be allowed to profit by his own wrong.' 1 R.C.L. 930, § 77."
The general rule and our other cases are stated in 1 R.C.L. 930; King v. King,
We have carefully examined this record, and are of opinion that the wife was induced by the husband to the honest belief — accepted in good faith — that he was not guilty of the unfaithful and unlawful conduct charged against him in the seduction suit; and that her continued relations with him were not a condonation of his conduct, so as to preclude her action when she was informed and awakened to the true relations that the husband had sustained to other women. Mischler v. Duchman,
In Ortman v. Ortman,
The three appraisers of appellant's real property fixed the value at $25,828, without deducting encumbrances. The latter reduced the amount to about $23,000. The court's award amounting to about $14,500 (to include the value of the furniture) was excessive. The furniture given the wife was worth about $800 to $2,000, and this value should be considered in making the final or gross award. Coleman v. Coleman,
The testimony shows that Mrs. Phillips is much younger than respondent; that the latter has a permanent and serious physical disability; was engaged in business and laying the foundation for his fortune when he married; that complainant was employed by him at from $7 to $10 per week when they married, and thereafter continued such service at times in the store, when not engaged at home; that she ran the home on $10 a week, as to laundry and grocery bills, etc.
The fact of a policy of insurance, aside from its cash surrender value, could not be counted a part of the husband's estate out of which allowances in gross for alimony should be made.
We are impressed, and so hold, that the judgment for her allowance for attorneys' fees of $1,500 should be reduced to $1,000, and such is the order; and that "permanent alimony" fixed at $11,500 should be reduced to $7,500, and such is the judgment rendered. The $75 per month fixed as an allowance for support of complainant, pending the appeal from the decree of date of December 30, 1929, is not disturbed. And in the respects indicated, the judgment of the trial court is corrected.
The decree properly fixed and adjudged a lien upon the property described for the payment of the sums indicated. We have here indicated the amounts of the decree, the same to be paid in reasonable installments to be fixed by the trial court in its corrected decree. There is no additional sum to be added by way of a penalty under the statute. Section 6153, Code; Dent v. Foy,
Corrected and affirmed in part, and remanded.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.
Addendum
To clarify the opinion as to allowances of items of interest, the attorneys' fees shall bear interest from the date of the original judgment here, May 29, 1930; the temporary allowance pendente lite to bear interest from the respective due dates as decreed to be paid by the trial court; and the permanent allowance of alimony of $7,500 to bear interest from the date of the original judgment here, viz., May 29, 1930; that execution or order of sale be not issued as to permanent alimony and attorneys' fees for ninety days from this date.
All the Justices concur. *458
