120 So. 167 | Ala. | 1928
Lead Opinion
The record in this case shows Margaret E. Smith, appellee and cross-appellant, sued appellant for divorce and alimony, alleging voluntary abandonment. Formal denial of the allegations of the bill was made in answer. Final decree was entered July 14, 1923, granting a divorce and providing as permanent alimony $150 monthly. It was further decreed that the cause be retained, and that the decree was subject to change or modification as to the amount of alimony at any time in the future. On January 11, 1926, appellant filed a petition in said court alleging a change of circumstances since the final decree, and seeking a modification of said decree and that he be relieved from further payment of alimony. The petition was answered, and came on for hearing before the two judges of the circuit court sitting jointly, before whom the testimony was taken orally. Upon hearing such testimony the judges both signed and entered a decree modifying said former decree of alimony, so as to reduce the amount thereof from $150 to $100 per month. Both parties on the same day procured an appeal, each giving security for costs, and each separately assign errors. There is no application to this court for mandamus to review said decree reducing the amount of alimony. Neither party has moved to dismiss the appeal of the other.
This court has held in several cases that such a decree on a petition of this nature will not support an appeal. Gabbert v. Gabbert,
When jurisdiction to modify an alimony allowance is retained in the final decree, a subsequent petition and proceedings to effect such modification are not of the nature of an original cause justifying appeal from a decree thereon.
Having concluded that the decree will not support an appeal, it follows that the appeal must be dismissed without motion to that end. This question has also been fully considered and determined by this court. In the case of Jackson v. Jackson,
Based on the foregoing authorities, and for the reasons above stated, it is ordered that both appeals in this case be dismissed, and the costs of appeal taxed equally between the parties.
Appeal dismissed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.
Addendum
In response to an application for rehearing we have further considered the nature of the decree from which this appeal is taken.
We are cited to our case of Morgan v. Morgan,
The result now reached leaves the situation where an appeal lies to this court from a decree of the circuit court in equity, either denying or granting a petition to such court praying for a modification of an allowance made as permanent alimony in a decree rendered therein on final hearing, whether such latter decree is in a proceeding for a divorce, or one solely for alimony, and whether the allowance makes provision for the wife alone, or for her and children; and it is immaterial to this question whether such final decree reserved control over said allowance or not, but the decree on such petition must finally dispose of the same. It is also immaterial to the question whether thereby further control is reserved in the decree sought to be reviewed. We repeat that the rule announced in the Brady Case, supra, is not hereby affected, but remains in effect, so that an appeal will not lie to this court to review a decree fixing or modifying or denying a petition to fix or modify an allowance of alimony pendente lite, and that such ruling may only be reviewed in this court by mandamus.
We now proceed to review the record on the appeals taken by both parties from the decree of the court modifying the final decree of divorce, which also fixes a monthly allowance as permanent alimony. We have considered all the evidence in the case which was taken orally in the presence of both the judges of the circuit, upon which they entered a decree reducing the monthly allowance from $150 to $100. We will not undertake to review the evidence, as we think it would not serve any useful purpose here. We will content ourselves in this connection by stating that in our opinion the decree of the court modifying such allowance is fully justified by the evidence, and on both appeals the decree of the circuit court is affirmed.
Affirmed.
All the Justices concur.