Summary
In Thomas v. Thomas, 211 Ala. 504, 100 So. 766, under the facts of the particular case and for reasons there stated, the monthly allowance was awarded beginning as of date of service of process upon bill filed.
Summary of this case from Waldrop v. WaldropOpinion
1 Div. 314.
June 24, 1924.
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
R. Percy Roach, of Mobile, for appellant.
The allegations of the bill are not explicit and definite as to marriage of the parties. 19 C. J. 107. A decree based on a bill without equity will be reversed, even though its allegations were taken as confessed. Jasper v. Eddins, 208 Ala. 431, 94 So. 516; Johnson v. Kelly, 80 Ala. 135. The bill should have shown the estate of respondent. Brady v. Brady, 144 Ala. 418, 39 So. 237; Clisby v. Clisby, 160 Ala. 575, 49 So. 445, 135 Am. St. Rep. 110; Lovett v. Lovett, 11 Ala. 763; Murray v. Murray, 84 Ala. 365, 4 So. 239. The amount awarded is excessive. Brady v. Brady, supra.
Brown Kohn, of Mobile, for appellee.
It is not necessary that the bill allege the husband has a separate estate. The allegation of marriage was sufficient. Lovett v. Lovett, 11 Ala. 763; Lawrence v. Lawrence, 141 Ala. 356, 37 So. 379.
This is a bill filed by a wife against her husband for separate maintenance.
In Tutwiler v. Tutwiler, 205 Ala. 283, 87 So. 852, we said:
"Suits of this nature are regarded as of a tripartite character, wherein the public occupies in effect the position of a third party, and the court is bound to act for the public in such cases, though of course the rights of the parties themselves must be fully respected. * * * We apprehend, therefore, that in cases of this character questions of mere legal niceties in regard to pleading should not interfere with the meritorious consideration of the cause. The bill should of course contain sufficient averment of facts on which the suit is founded to give due notice to respondent of what he is called upon to defend."
It is contended for appellant that the allegations of the bill of complaint are not sufficient to support the decree, even though taken as confessed.
The grounds specially urged in this behalf are (1) that it is not shown that complainant and respondent have ever been married to each other; nor (2) that they ever lived together as husband and wife; nor (3) that the respondent has any estate or earnings or earning capacity which would enable him to furnish the support demanded.
We think, however, that the allegation that complainant and respondent "were lawfully married in Mobile county, Ala., on, to wit, October 1, 1891," must be understood as meaning that they were married to each other, and not to other persons. As to cohabitation after marriage, if that fact be conceded as necessary to the equity of the bill, it will be presumed prima facie from the fact of lawful marriage, and is, moreover, clearly and necessarily implied from the allegation that after the lapse of about 20 years respondent "voluntarily abandoned the bed and board" of complainant. And, finally, as to the estate or earnings of the husband, it is to be observed that the general duty of future maintenance is not dependent on the husband's ownership of property, nor entirely upon the fact of current earnings; but rather upon his ability to earn, and the probability of his being able to earn the support demanded. Until inability or disability is shown, it is to be presumed that a respondent husband is able, or will be able, to furnish maintenance, or contribute something thereto. Inability or disability is defensive matter, and must be considered and dealt with according to the equity and justice of the case, as shown by the evidence. We think the allegations of the bill are sufficient, at least on decree pro confesso, to support the final decree for relief.
It appears from the evidence taken before the register on reference that respondent is earning about $60 a month. The allowance of $15 a month for permanent maintenance for the wife, being about one-fourth of the husband's earnings, cannot be regarded as unreasonable or excessive.
The chief complaint, however, of the decree below is that it awarded to complainant the sum of $285 for maintenance pendente lite — being $15 a month for 19 months, covering the period between the filing of the suit on November 30, 1921, and the rendition of the final decree on July 21, 1923. Such allowances are usually and properly made by interlocutory orders in advance of the final decree — the purpose being to assure a support for the wife during the period of the litigation. Here, it appears, no interlocutory order was made, and a lump sum was awarded in the final decree, on the basis of a monthly allowance of $15.
It is at least doubtful whether a wife who has delayed bringing her suit for maintenance for a period of 10 years after her husband's abandonment of her (as here appears to be the case), and who has in the meantime supported herself without his aid, is entitled to maintenance pendente lite. Oram v. Oram, 77 N.J. Eq. 1, 75 A. 994; 30 Corp. Jur. 1085.
The record shows that respondent was not served with notice of the suit until February, 1923, about 14 months after the suit was filed. Until that time he had no warning of the claim to be made against him, and in view of the absence of any evidence tending to show that he has any property at all, or any means for the payment of such a sum other than his weekly earnings, we think it is inequitable to fasten upon him a liability for such maintenance except for the period between service of process and the final decree — 5 months, approximately.
The decree will therefore be corrected so as to allow the sum of $75 instead of $285, for maintenance pendente lite, and as thus corrected the decree will be affirmed, and the costs of the appeal will be apportioned equally between the parties.
Corrected and affirmed.
ANDERSON, C. J., and THOMAS, and BOULDIN, JJ., concur.