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YELVERTON v. YELVERTON

Supreme Court of Mississippi, In Banc.

Nov 25, 1946

Judgment

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CITATION CODES

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DOCKET NO.

No. 36213.

Attorney(S)

Jeff Collins, of Laurel, for appellant. A wife is generally not entitled to alimony where a divorce is granted to her husband under circumstances showing that the separation was brought about by her acts and conduct. A husband is entitled to have his wife receive her support in his home while discharging the duties and obligations imposed upon her by the marriage contract; without fault on the part of the husband, she is not entitled to receive support elsewhere. Winkler v. Winkler, 104 Miss. 1, 61 So. 1; Walker v. Walker, 140 Miss. 340, 105 So. 753; Coffee v. Coffee, 145 Miss. 872, 111 So. 377; Bell v. Bell (Miss.), 23 So.2d 800; Amis on Divorce and Separation in Mississippi, Secs. 82-90, 198; Code of 1906, Sec. 1673, Code of 1942, Sec. 2743; 1 R.C.L. 936, Sec. 83. Deavors Hilburn, of Laurel, for appellee. While it is the general rule that alimony will not be allowed the wife unless the decree for a divorce is in her favor, it is recognized that the wife may be guilty of such a breach of the marriage obligation as to entitle her husband to a divorce and, yet, it may not be just if her husband is comparatively rich or capable of earning money, and she is poor or weak, that she should be turned out into the world without any means of livelihood but her own exertions. Winkler v. Winkler, 104 Miss. 1, 61 So. 1; Wilson v. Wilson, 198 Miss. 334, 22 So.2d 161, 23 So.2d 303; Price v. Price, 181 Miss. 539, 179 So. 855; Gresham v. Gresham, 198 Miss. 43, 21 So.2d 414, 199 Miss. 778, 25 So.2d 760; Code of 1942, Sec. 2743. The awarding of permanent alimony is within the sound discretion of the court, and is not subject to reservation or correction on appeal unless there is error on its face or it is unjust to either party or oppressive. Winkler v. Winkler, supra.

JUDGES

Griffith, J., delivered the opinion of the Court.

ACTS

No Acts

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CONSTITUTIONAL LAW. Statutes.

Where Supreme Court in 1913 interpreted alimony statute as authorizing a court in a proper case to decree alimony to the wife, though the husband is granted a divorce, and statute was later re-enacted in precisely the same words, the Supreme Court's interpretation became a part of the re-enacted statute, and therefore if any modification was to be made in the Supreme Court's interpretation of the statute, it was required to be made by the Legislature and not by the Supreme Court (Code 1942, sec. 2743).

Griffith, J., delivered the opinion of the Court.

This case is governed by Winkler v. Winkler, 104 Miss. 1, 61 So. 1, Ann. Cas. 1915C, 1250, and we would not find it necessary to say anything further were it not that it seems to be argued by appellant that the holding in the Winkler case has been modified by subsequent opinions, or if not, that some modification ought to be made now.

The cases subsequent to the Winkler case, so far as cited on the present appeal, are Walker v. Walker, 140 Miss. 340, 105 So. 753, 42 A.L.R. 1525; Coffee v. Coffee, 145 Miss. 872, 111 So. 377; Gresham v. Gresham, 198 Miss. 43; 21 So.2d 414; Wilson v. Wilson, 198 Miss. 334, 22 So.2d 161; and Bell v. Bell (Miss.), 23 So.2d 800. None of these cases modify the ruling in the Winkler case; and as to any modification now, we would call attention to the fact that Section 1673, Code 1906, in force when the Winkler case was decided, was later re-enacted as Section 1421, Code 1930, in precisely the same words, now Section 2743, Code 1942, so that the interpretation which the Court had put upon the statute as it existed when the Winkler case was decided became a part of the statute when it was re-enacted in 1930, with the result that if any modification is to be made of what was held in the Winkler case, it must be done by the Legislature and not by us.

Affirmed.

Sydney, Smith, C.J., did not participate in this decision.