November 26, 1945.
1. HUSBAND AND WIFE.
In suit for separate maintenance, chancellor in passing on petition for temporary alimony and counsel fee need not investigate merits of original bill or inquire into truth of facts therein alleged but is only required to determine that a case for relief is stated on face of bill or supplemental petition.
2. HUSBAND AND WIFE.
Chancellor had jurisdiction to hear in vacation petition for temporary alimony and counsel fee contained in wife's bill for separate maintenance, though wife was receiving monthly allowance from Federal Government allotted to her at instance of son-in-law in military service (Code 1942, sec. 2742).
3. HUSBAND AND WIFE.
In suit for separate maintenance, chancellor should not grant petition for temporary alimony and counsel fee until term time, if it develops in vacation hearing that granting of such relief is not urgent and necessitous (Code 1942, sec. 2742).
4. HUSBAND AND WIFE.
Vacation decree in suit for separate maintenance awarding wife temporary alimony $50 per month less such payments as she might collect from Federal Government on account of allotments to her by son-in-law in military service was so indefinite as to be unenforceable (Code 1942, sec. 2742).
A decree should be complete within itself, containing no extraneous references, and leaving open no matters of description or designation out of which contention may arise as to the meaning.
A final decree should not leave open any judicial question to be determined by parties or officers charged with execution of decree, and even as to matters solely affecting the execution, if their nature is such as is likely to eventuate in dispute, reservation for further directions should be made if impossible safely to do otherwise.
APPEAL from the chancery court of Grenada county, HON. V.D. ROWE, Chancellor.
S.C. Mims and W.B. Nicols, both of Grenada, for appellant.
The appellee filed a bill for separate, temporary and permanent support and maintenance and solicitor's fee. The bill was returnable to the April 1945 term of the chancery court. The appellant moved to quash the process and the motion was sustained by the court and held for naught. On application of the appellee, she was permitted to amend her bill or petition by alleging that her support and maintenance was urgent and necessitous and a day in vacation was set for the hearing on the question of temporary alimony. New process was issued on the bill or petition requiring the appellee to "plead, answer or demur to the bill of complaint" on the 8th day of April, 1945. On the day of the hearing the appellant filed a motion to dismiss the proceedings for the reason that the chancellor had no jurisdiction to hear the matter in vacation for the reason that the appellant was not in court in the manner required by Section 1849 of the Code of 1942, and that no petition had been filed as required by Section 2742 of the Code of 1942. The chancellor overruled the motion and upon hearing the testimony, as disclosed in the special bill of exceptions, awarded temporary alimony in favor of the appellee and overruled the motion of appellant to exclude the testimony for the reason that the testimony disclosed that the appellee was not in an urgent and necessitous condition and therefore the chancellor was without jurisdiction.
When the appellant's motion to quash was sustained he was without question in court notwithstanding the favorable order of the court. However, he was not required to plead to the bill or petition of the appellee until the October term. But, being in court, the appellee had the right by a petition which alleged that she was in a necessitous condition and that it was urgent that temporary alimony be awarded her to have the appellant cited to a day certain and show cause why such temporary alimony be not awarded. No such petition was filed and no such citation issued. The appellant was summoned to "answer, plead or demur to the bill of complaint" and such summons was returnable to the 28th day of April, 1945, not the regular term and not a rules day. It was not necessary to issue a summons as the appellant was in court. But it is respectfully submitted that a petition in compliance with Section 2742, supra, was required and that citation issue to the respondent advising him of the purpose of the hearing.
The authority for a vacation hearing is in derogation of the common law in regard to the trial of a case, and the recent amendment of the Legislature providing for va-vacation hearings in divorce suits, while a wise one, is a very decided deviation of the policy of this state since the authority to grant divorces was delegated to the court by the Constitution of the state and the Legislature divested of such authority; therefore, the amendment should be strictly construed, and the wife seeking such relief should comply strictly with the provisions and intent of the Legislature in the enactment of the same. In this the appellee did not do, and the motion of the appellant raised the point and it is respectfully submitted that the learned chancellor erred in not sustaining the motion. In this connection we will further present our argument in support of the assignment that the chancellor was without jurisdiction for the reason that the proof disclosed that the appellee's case was not urgent and necessitous. The special bill of exceptions disclosed that the chancellor had before him proof that the appellee was receiving $37 per month. This amount was certainly sufficient to support and maintain the appellee, a negro living on a farm, pending the hearing of this cause on its merits. The bill discloses the status of the appellant and appellee. The appellant, an old negro, is sixty-seven years of age, in bad health and without property except a small hill farm upon which a mortgage was held for practically one-half of its value. The fact that the $37 was not received from the appellant is beside the question. The fact required to give the chancellor jurisdiction was whether or not the wife was in a necessitous condition and that it was urgent that she be provided for pending the hearing on its merits. This manifestly was the intent of the Legislature. It was not the purpose of the Legislature to impose upon the chancellors and require a vacation hearing in every case wherein a wife sues her husband for a divorce or separate support, and not the purpose of the Legislature to impose such on a husband unless the situation was such as provided by the amendment.
It is further respectfully submitted, with due deference to the learned chancellor, that he was manifestly in error in awarding the appellee the amount of $50 per month, in that same was excessive as the special bill of exceptions discloses that the appellant could not earn such amount and that the income from his farm could not possibly be such as to allow him a meager living and then pay $50 per month to the appellee. Finally, it is submitted that the decree of the chancellor should be reversed for the reason that the decree is void for uncertainty.
The liability of the appellant under the decree is penal. If the appellant failed to comply with the decree he would be in contempt of the court, and to protect himself he would have to prove the "extraneous references" in the decree as to whether or not his wife had continued to receive the allotment of $37. Such a decree is condemned in Section 625 of Griffith's Mississippi Chancery Practice with citation to support the decision. In Section 626 of this valuable book we find that "where a decree in chancery is rendered for the recovery of money it must be for a sum certain."
Stone Stone, of Coffeeville, for appellee.
This is about the simplest proposition that could be handled in an appeal to the Supreme Court. It is simply the allowance of maintenance and support to a poor sick woman who is being sued by her husband for a divorce, and this case being under a bill filed by her for simple support and maintenance and counsel fees. It would be hard to imagine a case where it would be more difficult to overturn the action of a chancellor. He heard the facts and awarded alimony in the sum of $50 but gave the appellant credit for $37 that the appellee was getting from a son in the war, so long as the $37 a month came from the Government, and allowing $35 for preliminary fee for counsel for appellee.
Now counsel comes along with a lot of technical objections and winds up with an objection that the judgment allowed is uncertain in amount. Now here are the facts concerning that: we took the position that it was the duty of the appellant to support his wife and that it was none of his business what she might be getting from her son in the war, the amount paid by the Government on allotment. The court first ruled with us and then said, though, that he would give appellant credit for the $37 so long as it came. Now having begged the chancellor for a credit on his payment, the appellant is here claiming that that renders the judgment ineffective, because it is an uncertain amount. The judgment is for $50 a month but gives the appellant some that he is not entitled to, which is a credit each month for the Government payment of $37 so long as it comes. The other objections to the decree, etc., are too technical and due too much to counsel's imagination to be worthy of argument.
This suit is one by Annie Berryhill seeking separate support and maintenance from her husband, Adam Berryhill, without a prayer for divorce. The bill of complaint alleges that the defendant had deserted her for a period of nearly five years, moving to another county, and leaving her on the charity of her friends and relatives for support and maintenance. There are also allegations as to the defendant's ownership of property and ability to support and maintain the complainant. The bill of complaint also contains a prayer for a vacation hearing for "temporary alimony, alimony pendente lite and for counsel fees," and alleges that the granting of such relief in vacation is urgent and necessitous.
Section 2742, Code of 1942, provides, among other things, 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."
The jurisdiction of the chancellor to hold the vacation hearing in the instant case is challenged because it developed at such hearing that the complainant was receiving an allowance from the Federal Government of $37 per month which had been allotted to her at the instance of a son-in-law in the military service; that since she was an elderly negro woman, living on the farm, the said allowance from the Federal Government was such as to defeat her claim that it was urgent and necessitous that relief be granted to her in vacation in advance of a hearing on the merits of the case. It was held, however, in the case of Johnston v. Johnston, 182 Miss. 1, 179 So. 853, 854, "[that] 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; . . ." This being true, we think that the chancellor had jurisdiction to hear in vacation the petition contained in this bill for temporary alimony, counsel fees, etc. Nevertheless, if it should develop at a vacation hearing that the granting of the relief sought is not urgent and necessitous, the chancellor should decline to grant relief until term time.
In the instant case, hearing was had in vacation and a decree rendered whereby the complainant was awarded $50 per month as temporary alimony and the sum of $35 as an attorney's fee, but it was provided in such decree that there should be credited on the said $50 per month temporary alimony "the sum of such payment as may be collected by the said Annie Berryhill each month from the U.S. Government on account of contributions or allotments by the son-in-law of the said Annie Berryhill."
It will be readily seen that the decree is not therefore definite and certain as to the amount which the defendant Adam Berryhill was required to pay each month. The son-in-law, by reason of prospective advancement in rank, had the right to increase such allowance or to have the same decreased for any reason satisfactory to him. Moreover, the effect of this provision in the decree was to leave it to the determination of the clerk of the court as to whether the wife had in fact received this allowance at the time any monthly installment on the alimony became due. In this respect, the decree was indefinite and uncertain and therefore unforceable.
In the case of Todd v. Todd, 197 Miss. 819, 20 So.2d 827, 831, it was held under the authority of Griffith's Miss. Chancery Practice, Secs. 625, 626, that in such cases the decree "should be complete within itself — containing no extraneous references, and leaving open no matter of description or designation out of which contention may arise as to the meaning. Nor should a final decree leave open any judicial question to be determined by others, whether those others be the parties or the officers charged with the execution of the decree, and even as to matters solely affecting the execution, if their nature be such as is likely to eventuate a dispute, reservations for further directions should be made if impossible safely to do otherwise." There is equal reason for applying this principle to the vacation decree in the instant case.
Therefore, because of the fact that the vacation decree for temporary alimony is indefinite and uncertain in the particular above pointed out, the cause must be reversed and remanded.
Reversed and remanded.