Adair v. Adair

• Decision Date: 13 November 1952
• Docket Number: 3 Div. 634
• Citation: 62 So.2d 437,258 Ala. 293
• Parties: ADAIR v. ADAIR.
• Court: Alabama Supreme Court

Page 437

62 So.2d 437

258 Ala. 293

ADAIR v. ADAIR.

3 Div. 634.

Supreme Court of Alabama.

Nov. 13, 1952.

Rehearing Denied Jan. 19, 1953.

Walter J. Knabe and T. E. Martin, Montgomery, for appellant.

W. Ervin James and Hill, Hill, Whiting & Harris, Montgomery, for appellee.

BROWN, Justice.

This litigation originated in a proceeding for divorce from bed and board filed by the wife against the husband on November 1, 1949, under the provisions of Chapter 2, Title 34, Code of 1940, more particularly under §§ 36 and 37 of said title. The bill following the prescription of the statutes alleges the names and residences of the parties, the date of their marriage, 'to wit July 22nd, 1914, and that they lived together as husband and wife until to wit October 24th, 1949.' The bill further alleges that said respondent has since their marriage 'committed actual violence on her person attended with danger to life or health, or that from his conduct there is reasonable apprehension of such violence'; that the complainant is over fifty years of age and has no income whatsoever; that respondent is in good health, is a professional man, has an excellent income and has large property holdings.

After prayer for process against respondent giving his name, the bill further prays for a reference; that she be granted a temporary allowance for her support pending the hearing of the cause; for reasonable solicitor's fees; 'that upon final hearing the Court will render a decree granting to Complainant a divorce from bed and board and will grant to her in said decree permanent allowance for maintenance and support; that Respondent be required to pay a reasonable fee to solicitor for Complainant for his services, and Complainant prays for such other, further and different relief as may be proper in the premises.' Thus the court's statutory and limited jurisdiction was invoked by the bill. Martin v. Martin, 173 Ala. 106, 55 So. 632.

After demurrer filed and overruled, the respondent answered admitting the allegations as to the age and residence of the parties; the fact they were married and the date thereof and that they lived together as husband and wife, but denied that they separated on to wit, 'October 24, 1949, as alleged in paragraph two of said bill.' Respondent alleged that 'he and the complainant are still residing together in the same house.' All other allegations in paragraph three of the bill of complaint were denied and strict proof thereof demanded. The respondent's answer admitted that the complainant is over fifty years of age, that respondent is a professional man and all other allegations of paragraph 4 of the bill were denied and strict proof thereof demanded. The answer of the respondent then alleges:

'Further answering paragraph four of the bill of complaint, respondent says that complainant owns considerable property, that the title to the house and lot where complainant and respondent presently reside is in the complainant and is reasonably worth $25,000.00.

Respondent further says that on, towit, two years ago the complainant took from respondent the sum of $12,000.00 and that she has ample means for her own support.

'Wherefore, respondent says that the complainant is not entitled to relief as prayed for in her said bill of complaint, neither is she entitled to any alimony whatsoever and your respondent prays judgment hereof.'

The case was submitted December 13, 1949, and the court on the same day entered the following final decree:

'It is, therefore, ordered, adjudged and decreed by the Court

'That complainant and respondent live separate and apart from bed and board.

'And it further appearing to the Court that the parties have reached an agreement, which agreement is made known to the Court in open Court, and the Court having considered same and being of the opinion the same is fair and equitable, now, therefore,

'It is further ordered, adjudged and decreed as follows:

'1. That R. T. Adair be, and he is hereby permitted to occupy the real estate in the name of M. Pollard Adair, and the real estate in the name of M. Pollard Adair and R. T. Adair, jointly, he shall have full use of said property, shall pay all taxes and insurance, and shall maintain said property, and shall not be required to account for the income in any way, he shall have sole and exclusive possession of all the said property as long as he carries out the provisions of this decree.

'The said R. T. Adair shall deliver to the said M. Pollard Adair one United States Series E bond of a face value or maturity value of $1,000 now in her name, and also deliver to her any other bonds solely in her name; he shall also deliver to the said M. Pollard Adair the motor vehicle license and title to the 1948 or 1949 Lincoln Continental convertible now in her possession in the manner required by law, and shall take all action necessary to transfer both title and license to complainant; that the respondent deliver to complainant the chinaware, together with one radio, as agreed upon between the complainant and respondent.

'3. That the respondent shall pay to complainant the sum of $225 per month, the first payment to be made on December 15, 1949, and on or before the 15th of each month thereafter until further order of this Court, for her separate maintenance and support, said payments to be made to the Register in Chancery of the Circuit Court of Montgomery County in Equity; said payments to be in lieu of all other obligations of any kind, nature and description that she has against respondent as his wife for her support.

'4. It is further ordered, adjudged and decreed by the Court that a reasonable attorney's fee for attorneys for the complainant shall be the sum of $1000, and it is further part of the agreement between the parties and their attorneys that the complainant shall pay said fee, and complainant in open Court hereby authorizes the Register of the Circuit Court of Montgomery County in Equity to pay over to said attorneys for complainant the first $1,000 paid into the court under this Decree.

'5. Each party being, and is hereby enjoined from interfering or molesting the other party in any way.

'6. The costs of this proceeding are hereby taxed against the respondent, for which let execution issue.

'7. All other questions reserved.'

On November 13, 1950, the complainant filed motion, under oath, alleging that respondent had failed to make the payment as provided in the decree of December 13, 1949, and prayed that an order be entered requiring that defendant show cause why he should not be adjudged in contempt. Such order was entered on the date of filing the motion. On November 29, 1950, the matter of ascertaining the truth of the allegations in said motion was, by the court, referred to the register.

On January 9, 1951, the register issued a writ of garnishment to O. L. Campbell alleged to have 'or is believed to have in his possession or under his control, money or effects belonging to the Respondent * * *.' On January 12, 1951, the garnishee Campbell filed a sworn answer, denying that he was indebted to or had assets of the respondent in his possession.

On January 17, 1951, respondent filed pro se a petition for reduction of 'separate maintenance money' granted to the complainant in the final decree of the court in November 1949, alleging in said petition as follows:

'That respondent is a physician of advanced years and declining health; and that because of these infirmities, has been forced to progressively curtail his practice of medicine. That for this reason his income has steadily declined, but that the expenses of maintaining an office and a home are steadily increasing. That the sum of $225 a month is more than respondent can pay.

'3. That respondent has tried to comply with the Court's orders but has found it impossible.

'Respondent therefore petitions this Honorable Court to consider the above-referred-to circumstances, and modify its form of decree by giving a reduction in the amount of separate maintenance money, to an amount not in excess of $100 a month.'

Said petition was set for hearing by the court February 9, 1951.

On the 26th of January, 1951, on sworn application of the complainant, a second writ of garnishment was issued to 'Y. M. C. A., North McDonough Street, Montgomery, Ala.', with the usual and appropriate recitals as to indebtedness.

On January 26, 1951, the register filed his report containing the following findings, recitals and conclusions:

'Complainant, being duly sworn, stated that she had received no payments for alimony for the past two months and that respondent was in arrears on the 15th of November, 1950, in the total sum of $450.00. These payments were by the provisions of the Decree of Divorce entered in this cause to be paid into the registry of this Court monthly on the 15th day at the rate of $225.00 per month, and the Register checked his records and found that the payments for the months of October and November, 1950 had not been paid, and remain unpaid to this date.

'Respondent, being duly sworn, stated that his income has been considerably reduced during this year as compared to the preceding years and that he is unable to make the payments as directed in the former Decree, however, he offered no substantial proof of his present income or any concrete idea of his probable income in the future. Respondent neither prayed for a reduction of his payments in view of his stated decreased income, nor did he give any indication of any amount that he might be able to pay to Complainant.

'Upon consideration of the above testimony, the Register is of the opinion and finds as follows:

'1. That respondent is in arrears in the payments into the registry of this Court for the benefit of complainant, to the 15th day of November, 1950, in the total sum of $450.00.

'2. That respondent has shown to the Register no valid reason for his failure to make the payments as directed, and that he should be given to...