Ross v. Ross, 42 So. 382

Ross v. Ross

42 So. 382 | Miss. | 1906

Mayes, J.,

delivered the opinion of the court.

Without deciding any other question in this cause, we think the learned chancellor erred in not permitting the defendant to *73introduce oral evidence at the hearing on the motion for alimony pendente lile. Without any proof before the court, an order was made allowing $200 counsel fees, and $30 per month alimony. The allowance of alimony pendente lite is not a matter of absolute right, to be allowed under any and all circumstances, but is one which is addressed to the sound discretion, of the court, having in view the circumstances of the party making the application, together with the circumstances of the husband, which is always a matter of proof. It must appear that the wife is without means to maintain herself and properly conduct the suit, and whenever she has sufficient means for this purpose, alimony pendente lite will not be allowed. She will not be required to exhaust her resources for the purpose of conducting the suit before she may claim alimony pendente lile; but if she has a sufficient property to maintain herself and conduct her suit, it is not proper to allow alimony pendente lile. Particularly is this the case where the sole purpose of the suit is to have the court fix permanent alimony. The bill in this case shows that Mrs. Ross had real estate, personal estate, and property in expectancy, amounting to $1,258. This sum may or may not have been sufficient for the purpose of enabling her to properly conduct her suit and maintain herself while the suit was pending; but it was a question that was open to proof, and the court should not have excluded the defendant from introducing oral proof showing that it was sufficient, if he could. The defendant further had the right to take proof as to what was a reasonable attorney’s fee to be allowed.

In the case of Porter v. Porter, 41 Miss., 116, the court said: “If the wife have a separate estate, by which she is enabled to prosecute her suit without such an allowance, the court will not grant her application until her means are exhausted. The amount of allowance is a matter in the discretion of the court, depending upon the circumstances of the parties and the pecuniary ability of the husband.” And, further, it says: “In deter*74mining wbat is tbe proper allowance, it must be informed of tbe condition and circumstances of the party and tbe pecuniary ability of tbe busband.” Without tbe proof offered by defendant, we hardly see bow tbe court could bave been informed of tbe condition and circumstances of tbe party, or wbat would be its guide as to wbat was a proper allowance. In tbe case of Verner v. Verner, 62 Miss., 260, tbe bill shows that the!wife bad no separate estate, but was dependent upon ber own exertion for maintenance and support; and the court said, under these circumstances, she was entitled to be maintained by ber busband, and alimony pendente libe was allowable, she being without means of support and unable to conduct ber suit. In tbe case of McFarland v. McFarland, 64 Miss., 449 (1 South. Rep., 508), tbe chancellor beard oral testimony to show that tbe wife bad no separate property and wbat sum would suffice to support ber during the litigation, and also wbat would be a reasonable fee for ber attorney; and tbe court held that tbe admission of this testimony was proper. In tbe case of Garland v. Garland, 50 Miss., 694, tbe facts show that the wife bad no means of support for herself and family. It will thus be seen that, in all tbe cases that have been decided by this court, alimony pendente lile and counsel foes bave been allowed only in cases where the wife Avas without proper means to conduct ber suit and maintain herself while the litigation was progressing.

There is no proof in tbe record that tbe amount of property she oaviis was not sufficient to properly maintain herself and conduct this suit, and tbe right of defendant to show this is denied him by tbe court. If tbe amount of property OAvned by tbe wife Avas not sufficient-to maintain ber and enable ber to prosecute her suit, alimony pendente lite and counsel fees were properly allowable, in the discretion of the court, taking into consideration the circumstances of tbe wife and tbe circumstances of the bus-band in making tbe allowance. Tie may require a greater or less allowance, as the proof may have shown tbe necessities; that is *75to say, the allowance made for counsel fees and alimony pendente lite sbou]d have been graduated according to the amount necessary to supplement the wife’s means, in order to enable her to maintain herself and conduct her suit, and this could only be shown by the proof.

For this reason, let the came be reversed and remanded.