Edwards v. Edwards

Edwards v. Edwards. Bill for Divorce. 1. Chancellor’s conclusion in this case affirmed, there being no decided preponderance of evidence against correctness of. — Oil consideration of the evidence in this record, the court can not affirm that there is a decided preponderance against the correctness of the chancellor's conclusion, and therefore affirms his decree refusing to grant a divorce to the complainant. 2. Alimony; pending suit for divorce; pending appeal to this court. Pending a suit for divorce, the wife is entitled, as of right, to an allowance for lemporary alimony out of the husband's estate (Code, § 2694); but an application for alimony pending an appeal to this court, being subsequent to the appeal, is not subject to revision by this court on the appeal. Appeal from the Choctaw Chancery Court. Heard before the Hon. JonN A. Foster. The hill in this case was filed on 5th April, 1884, by the appellant, a married woman, by next friend, against her husband, the appellee, and sought a divorce a vinculo matrimonii, upon the grounds of his alleged intemperance, failure to properly maintain appellant, and cruelty and harsh usage — specific acts of which are averred in the bill. The complainant also prayed that the custody of the three children, the issue of the marriage, be confided to her; and, by petition subsequently filed, prayed that a reasonable allowance for counsel fees, and alimony, pendente lite, be decreed her out of the respondent’s estate. The appellee, answering the bill, denied all of its material allegations and made counter charges of maltreatment on the part of the complainant; and, in response to the petition for alimony, averred that his said wife was living apart from him, and was possessed of a separate estate adequate for her support, and approximately equal to that of defendant. Upon the hearing, had upon pleadings and proof, the chancellor was of opinion that the complainant was not entitled to the relief prayed, and caused a decree to be entered dismissing the bill and the petition for alimony. The second petition, pending the appeal to this court, is sufficiently noticed in the opinion. Toulmin, Taylor & Prince, and Taylor & Elmore, for appellant. — (1.) Upon all the testimony, appellant was entitled to the relief prayed in her bill. Evidence discussed with citation of following authority : 1 Bishop on Marriage & Divorce, §§ 742, 719, 720, 730, 736, 747, 768 ; 2 Bish., A, §§ 655-58, 3450-51-55-58. (2.) Alimony should have been allowed. 43 Am. Dec. 778; 68 lb. 481; 63 lb. 289 and note; lb. 665 and note; -Code, § 2694 and case cited in foot note.- (3.) The costs should not have been charged against the wife. — Richardson v. Richardson, 4 Porter, 467. (4.) That the Chancery Court has power to grant alimony after final decree, and that th& proper practice is to apply for alimony after decree — see 11 Ala. 763; Code, § 2694; 36 Am. Dec. 723; 33 Ga. 172, 173; 39 Ind. 185, 187. W. E. Glover, and W. L. Braco, contra, cited the following authorities : Daniel v. Daniel, 27 Ala. 22; Hughes v. Hughes, 19 Ala. 306; Rolmar v. Folmar, 69 Ala. 84; 56 Ala. pp. 94, 157, 576; 66 lb. 162, 362; 68 11. 598; 72 lb. 294; 74 lb. 243, 359; 71 lb. 556 ; 74 lb. 379 ; 74 Ala. 349 ; 75 lb. 385; 44 Ala. 619; Code, §§ 2694, 2695; 33 Ala. 98; Stewart on Marriage & Divorce, §§ 392 and 383; Porter, 41 Miss. 116, 117, 118; 44 Ala. 438; 70 Ala. 271, 85 ; 71 Ala. 536 ; 72 Ala. 467; 30 Ala. 643; 1 Parsons on Cont. 356; Code, § 2685; Constitution Ala. 139, Art. vi, § 2; Code, § 3916; lb. 3926; lb. 3927 and 3967; 1 Brie. Dig. 99, § 228 ; Code, 156 ; 1 Brie. Dig. 100 ; Stewart on Marriage & Divorce, § 366 ; 77 111. 346; Richardson v. Richardson, 4 Porter, 479-80. [MAJORITY — STONE, C. J.] STONE, C. J. — We have carefully examined the voluminous testimony found in this record, and we are not able to affirm there is a “decided preponderance” against the conclusion reached by the chancellor. — Nooe v. Garner, 70 Ala. 443. The clearly established facts show a sad case of family alienation and discord, but much of the blame is chargeable to the complainant. — David v. David, 27 Ala. 222. The chancellor did not err in refusing to grant the divorce prayed for. The question of alimony rests on different principles. “Pending a suit for divorce the court must make an allowance for the support of the wife out of the estate of the husband, suitable to his estate, and to the condition in life of the parties.” Code of 1876, § 2694. Under this statute, and the construction placed on it, it would seem the question of temporary alimony, or alimony or support pending the suit, is a matter not of discretion, but of right. — Jeter v. Jeter, 36 Ala. 391; Ex parte King, 27 Ala. 387; King v. King, 28 Ala. 315; Mims v. Mims, 33 Ala. 98; Ex parte Smith, 34 Ala. 455; Richardson v. Richardson, 4 Por. 467; s. c., 30 Amer. Dec. 538; North v. North, 43 Amer. Dec. 778; Methvin v. Methvin, 60 Amer. Dec. 664; Frith v. Frith, 63 Amer. Dec. 289; Pinckard v. Pinckard, 68 Amer. Dec. 481. Since the separation the daughters, two in number, remained witli the mother, and one of them was sent to school. The only son has been with the father. The wife has a separate estate, in value nearly or quite equal to half the value of the husband’s estate. Ve make no allowance for attorney’s fees. That is not compulsory. Wo order and decree, however," that defendant shall pay to complainant the sum of two hundred dollars for her support pending the suit; and the chancellor will make any orders necessary for carrying this decree into effect. After the present appeal was taken, a second petition was filed for alimony pending the appeal. This being a proceeding after the appeal, the chancellor’s ruling upon it is not before ns for consideration. The costs in the court below will remain as decreed by the chancellor, except the costs on the petition for temporary alimony or support, which will be paid by the defendant. The costs of the appeal in this court will be paid by the appellee; and the costs of appeal in the court below will be paid, one-fourth by the appellee, and three-fourths by complainant’s next friend. Reversed and rendered.