JOHNSTON v. JOHNSTON

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 33137.

Judges

McGehee, J., delivered the opinion of the court.

See more information ...

Smart Summary

Please sign up to generate summary.

JOHNSTON v. JOHNSTON.

J.W.T. Falkner, of Oxford, for appellant.

In Mississippi suits for separate maintenance are not recognized by statute. Such a suit is however recognized by the common law, and may be brought in a court of equity. A suit for separate maintenance however has no statutory basis, unless we say that such a suit may be brought under Section 1420 of the Code of 1930. This section however deals with suits for separate maintenance pendente lite where a divorce bill is pending. This section of the code is clearly not applicable here, and even if such power to hear a suit for separate maintenance could be drawn therefrom, plaintiff has not made plain an urgent and necessitous case for alimony pendente lite.

It is apparent from reading the bill of complaint filed by the complainant that there is no equity on the face of the bill. Admitting that each and every allegation of the complainant to be true as stated, there remains no ground for alimony pendente lite, custody of the children, and solicitor's fees.

The court erred in holding complainant entitled to separate maintenance and granting alimony pendente lite and attorney's fees. To entitle the wife to an allowance for separate maintenance it is essential that the ground therefor required in equity or under the statute shall exist; that there be a valid marriage; that the relation of husband and wife shall exist; that the wife be living separate and apart from the husband, and that the husband possess the ability to support the wife, and having been requested to do so, has failed, refused, or neglected to perform his duty in this respect before the beginning of the action.

30 C.J. 1071, sec. 861.

The right of a wife to a separate maintenance without divorce is recognized in equity and not provided for by statute in Mississippi.

Garland v. Garland, 50 Miss. 694; Dewees v. Dewees, 55 Miss. 319; Verner v. Verner, 62 Miss. 263; McFarland v. McFarland, 64 Miss. 449, 1 So. 508; Scott v. Scott, 73 Miss. 580, 19 So. 589; Mosely v. Larson, 86 Miss. 294, 38 So. 234; Ross v. Ross, 89 Miss. 66, 42 So. 383.

The reason or grounds which entitle a wife to seek separate maintenance should be grave, serious, weighty, and imperative, and such as to render the performance of marital duties impossible, especially where there are young children for whom a home should be provided.

Taylor v. Taylor, 108 Md. 129, 69 A. 632.

In Mississippi the rule is well settled that a wife is required under the marriage contract to perform certain duties of a good wife and mother where there are children as a result of the union of the parties and where separate maintenance is sought by the wife reasonably legal grounds must exist before that right may be claimed in equity.

Kenley v. Kenley, 2 How. (3 Miss.) 751.

There being then, from the facts and evidence in this case, no reasonable apprehension on the part of the wife of bodily harm from her husband, her abandonment of him presents no cause for a separate maintenance, which a court of equity can entertain.

McFarland v. McFarland, 64 Miss. 449, 1 So. 508; Hilton v. Hilton, 88 Miss. 529, 41 So. 262; Boyett v. Boyett, 152 Miss. 201, 119 So. 299; Verner v. Verner, 62 Miss. 260; Ross v. Ross, 89 Miss. 66, 42 So. 382.

The court erred in sustaining objection of complainant to letter of reconciliation offered in evidence by the defendant.

Kenley v. Kenley, 2 How. (3 Miss.) 751.

The court erred in granting an allowance in excess of the financial ability of the defendant.

C.A. Bratton, of Oxford, for appellee.

The contention of counsel in the lower court was that had we asked for a divorce in our original bill, then the proceeding in vacation might be authorized. We respectfully submit that if a vacation hearing is authorized for temporary alimony under necessitous circumstances where a divorce is asked for, then the same proceeding is proper where separate maintenance without divorce is sought. The rule is: "The practice on an application for temporary alimony and counsel's fees in a suit for separate maintenance follows as far as applicable the practice on a similar application in a suit for divorce."

30 C.J. 1085, sec. 887; Amis on Divorce and Alimony, sec. 177; Batson v. Batson, 262 Ill. App. 452.

The law is settled beyond cavel in Mississippi that it is not necessary that a bill for alimony should also seek a divorce in order to be maintainable.

Garland v. Garland, 50 Miss. 694; Dewees v. Dewees, 55 Miss. 315; Boyd v. Boyd, 159 Miss. 614.

It is equally as well settled in Mississippi that on a bill for separate maintenance where divorce is not asked for that alimony pendente lite and solicitor's fees will be allowed.

Verner v. Verner, 62 Miss. 260.

It is repeatedly stated in the cases that the question of alimony and solicitor's fees pendente lite is one directed to the sound discretion of the chancellor and one which will not be reversed on appeal except on the grounds of abuse of discretion.

Cupples v. Cupples, 31 Colo. 443, 72 P. 1056; McAdams v. McAdams, 267 Ill. App. 124; Boyd v. Boyd, 150 Miss. 614.

Solicitor for appellant assigns as error in the court below the refusal of the chancellor to admit in evidence a letter which the defendant, appellant here, wrote to his wife. Had this been a hearing on the merits there is no question but that the letter should have been admitted in the trial of the cause. Some of appellant's assignments of error and a large part of his brief and argument concern the merits of the case, and are not applicable because the hearing was not on the merits. But being a hearing on a motion for temporary alimony and solicitor's fees, the court was eminently correct in its ruling excluding the letter.

Porter v. Porter, 41 Miss. 116.

1. HUSBAND AND WIFE.

A bill for alimony or separate maintenance may be maintained without seeking a decree for divorce, and in such a suit alimony pendente lite and solicitors' fees may be allowed under power incident to chancery jurisdiction, independent of statute.

2. HUSBAND AND WIFE.

The practice on application for temporary alimony and counsel fees in suit for separate maintenance follows, as far as applicable, the practice on a similar application in a suit for divorce.

3. HUSBAND AND WIFE.

Under statute requiring divorce proceeding to be heard at regular or special term, but authorizing hearing in vacation of petition for temporary alimony and temporary custody of children, in suit for separate maintenance, solicitor's fee, and custody of children, chancellor could hear, in vacation, petition for temporary alimony and solicitor's fee and temporary order regarding custody of children (Code 1930, section 1420).

4. HUSBAND AND WIFE.

In suit for separate maintenance, chancellor, in passing on petition for temporary alimony and solicitor's fee and temporary order regarding custody of children, was not required to investigate merits of original bill, but only to determine that case was stated on face of bill or supplemental petition, and that allowance was necessary for plaintiff to prosecute her suit, and to be informed of circumstances of the parties.

5. HUSBAND AND WIFE.

In suit for separate maintenance, wife's conduct was not a matter for investigation on application for alimony pendente lite, but an allowance to the extent of the actual wants of the wife until her suit could be investigated and determined was almost a matter of course.

6. HUSBAND AND WIFE.

In wife's suit for separate maintenance, petition alleging, among other things, husband's refusal to provide actual necessities for support of wife and children, stated cause for allowance of temporary alimony and solicitor's fee and temporary order regarding custody of children.

7. HUSBAND AND WIFE.

In suit for separate maintenance, petition for temporary alimony and solicitor's fee was directed to sound discretion of the chancellor, and his action would not be reversed except for clear abuse of discretion.

8. HUSBAND AND WIFE.

In wife's suit for separate maintenance, evidence as to necessities circumstances of wife and pecuniary ability of husband supported decree awarding wife temporary alimony and solicitor's fee.

McGehee, J., delivered the opinion of the court.

Appellee filed her bill against appellant in the chancery court of Lafayette county, returnable to the May term of 1937, for separate maintenance, solicitor's fee, and for the custody of their children, but without seeking a decree of divorce. Process was not obtained prior to that term of court, and appellee filed a separate petition in July of that year praying for temporary alimony and solicitor's fee, and also for a temporary order regarding the custody of the children, and asked for a hearing thereon in vacation. Upon due notice to the appellant a vacation hearing was had and the relief prayed for was granted, except that the appellee was awarded the custody of only the youngest child.

On this appeal the appellant assigns as error the granting of the hearing in vacation, and the granting of any relief under the facts and circumstances disclosed by the record.

Section 1420, Code of 1930, provides that a proceeding to obtain a divorce shall not be heard or considered nor a decree of divorce entered except in open court at a regular or special term of the court, save in cases heard in term time and taken under advisement; but this statute further provides that the chancellor in vacation may, upon reasonable notice, in urgent and necessitous cases, hear petitions for temporary alimony and temporary custody of children and make all proper orders and decrees thereon. It is well settled, however, that a bill for alimony or separate maintenance may be maintained without seeking a decree for divorce, and it was held in the case of Verner v. Verner, 62 Miss. 260, that in a suit for alimony or separate maintenance, where no decree of divorce was sought, alimony pendente lite and solicitors' fees may be allowed. Such allowance does not depend upon statutory authority, but is a power incident to the jurisdiction of the court of chancery, independent of any statutory enactment. Porter v. Porter, 41 Miss. 116. The rule as announced in 30 C.J. 1085, is that "the practice on an application for temporary alimony and counsel fees in a suit for separate maintenance follows, as far as applicable to practice on a similar application in a suit for divorce." Applying this rule, in connection with section 1420, Code of 1930, it follows that the chancellor was authorized to hear and determine in vacation the petition for alimony pendente lite, solicitor's fee, and for the custody of the children.

In passing on such petition, the chancellor was not required to investigate the merits of the original bill or inquire into the truth of the facts therein alleged, but was only required to see that a case for relief was stated on the face of the bill, or the supplemental petition; that the allowance was necessary to enable the appellee to prosecute her suit, and in determining what was a proper allowance to be informed of the condition and circumstances of the parties and the pecuniary ability of the appellant to pay. Porter v. Porter, supra. In that case it was further held that such an allowance to the extent of the actual wants of the wife until her suit can be investigated and determined is almost a matter of course, and that the conduct of the wife, on an application for alimony pendente lite, is not a matter for investigation.

We are of the opinion that the petition on its face, which alleged a failure and refusal by the appellant to provide the actual necessities required for the support and maintenance of the appellee and the children, together with other facts and circumstances, sufficiently stated a case for the relief prayed for, and, since the question of alimony pendente lite and solicitor's fee is one directed to the sound discretion of the chancellor, his action in the premises will not be reversed except on grounds of a clear abuse of such discretion. We cannot say that the allowance made in this case was not warranted by the facts disclosed on the hearing both as to the necessitous circumstances of the wife and the pecuniary ability of the husband.

Affirmed.

JOHNSTON v. JOHNSTON.

Comments