Armstrong v. Armstrong

• Decision Date: 03 January 1938
• Docket Number: 14593.
• Citation: 194 S.E. 640,185 S.C. 518
• Parties: ARMSTRONG v. ARMSTRONG.
• Court: South Carolina Supreme Court

194 S.E. 640

185 S.C. 518

ARMSTRONG v. ARMSTRONG.

No. 14593.

Supreme Court of South Carolina

January 3, 1938

Appeal from Common Pleas Circuit Court of Sumter County; Philip H Stoll, Judge.

Action for permanent alimony by Louise Burkett Armstrong against C Brooks Armstrong. From an order requiring the defendant to pay to the plaintiff $50 per month as temporary alimony during continuance of suit and the sum of $200 as reasonable counsel fees, the defendant appeals.

Affirmed in part and reversed in part.

Shepherd K. Nash, of Sumter, for appellant.

L. D Jennings, of Sumter, for respondent.

FISHBURNE Justice.

This action was brought by the plaintiff against the defendant her husband, for permanent alimony. On August 28, 1937, the circuit court passed an order requiring the defendant to pay to the plaintiff $50 per month as temporary alimony during the continuance of the suit, and the sum of $200 as reasonable counsel fees.

The defendant has appealed, and raises one issue only for our determination: Was there an abuse of discretion on the part of the lower court in awarding temporary alimony and suit fees, where it is uncontradicted that the wife has an adequate income from her own earnings?

The matter was heard below upon the verified complaint the answer and return, and affidavits. The case has yet, of course, to be heard upon its merits.

The plaintiff and the defendant have no children, so that the suit involves only the right of the wife to support and maintenance for herself during the pendency of the cause, and for a proper allowance for counsel fees to prosecute her action.

It appears from the showing made before the circuit judge that the plaintiff and the defendant were married on June 26, 1927; that she has been continuously employed since her marriage, in a secretarial position, and is now earning a little more than $1,300 per annum. That she expects to continue working is not contested or denied. The plaintiff and the defendant resided with the plaintiff's mother in the city of Sumter from the date of their marriage until about August 14, 1937, when the record shows that he left his wife, refused to return to the residence where the parties had been living, and has refused to contribute to her support.

The question to be determined is, whether under the circumstances, the lower court was right in allowing alimony pendente lite, and counsel fees.

The right of the wife in a proper case to temporary alimony and suit money was passed upon by our court for the first time in the well-considered case of Smith v. Smith, 1897, 51 S.C. 379, 29 S.E. 227, where the right was sustained and upheld. This salutary principle has been consistently and uniformly recognized and enforced in many subsequent cases.

In Smith v. Smith, supra, the rule was announced that in an action for permanent alimony, the wife is entitled, upon a proper showing made, during the pendency of the suit, to an allowance for her support and maintenance, for costs and expenses and counsel fees to enable her to prosecute her action, if she is without separate means, and the husband is able to support her, whether she be libelant or respondent. It was further held in that case that although temporary alimony should be allowed without an examination into the merits of the case, yet a prima facie case must be shown in behalf of the wife, and that temporary alimony may be increased or diminished as circumstances may require, at any time during the pendency of the suit. These principles are universally recognized.

The authorities generally hold that the wife is a privileged suitor in cases of this character, as she should be, and if she is without an income competent for her support and the maintenance of her suit, living separated from her husband, where he refuses to furnish it, the court will allow her alimony pendente lite to carry on her suit without making any investigation as to the merits.

While this is true, it is equally well established that when the wife has sufficient means of her own for her support and maintenance, according to her station in life, and to enable her...