Benton v. Benton

• Citation: 214 Ala. 321,107 So. 827
• Decision Date: 25 March 1926
• Docket Number: 7 Div. 594
• Parties: BENTON v. BENTON.
• Court: Supreme Court of Alabama

107 So. 827

214 Ala. 321

BENTON v. BENTON.

7 Div. 594

Supreme Court of Alabama

March 25, 1926

Appeal from Circuit Court, Shelby County; E.S. Lyman, Judge.

Bill in equity by Fay Miles Benton against Samuel A. Benton. From a decree for complainant, respondent appeals. Reversed and remanded.

That husband has furnished adequate support during separation does not bar wife's right to divorce, if ground therefor otherwise exists, in view of Code 1923, §§ 7415, 7417, 7418.

The appeal is from a final decree rendered on a bill filed originally for absolute divorce, and for temporary and permanent alimony, but amended by striking out the prayer for divorce, so as to make it a bill for separate maintenance only.

The bill shows that complainant is a resident of Shelby county and respondent is a resident of Jefferson county; that the parties were married in June, 1904; that complainant was a dutiful wife in every respect; that respondent "voluntarily, and without cause or excuse, abandoned her, her home and her children," in Shelby county, in December, 1923; that complainant "has no property of any kind and no income, and that she is unable to pay a solicitor to represent her in this proceeding, and that she has no means or property upon which to live during the pendency of this suit, and that the said (respondent) has a lucrative position" with a designated company at Birmingham.

The respondent answered that the separation complained of was due to incompatibility and domestic differences, and was not objected to by complainant, and that he had continuously sent to her half of his earnings--$35 per week--and until recently had paid $10 per month for her house rent. He also averred that $25 per week was sufficient alimony for him to pay, and that he could not pay the amount claimed, $200.

The record shows the depositions of the parties and this minute entry:

"This cause comes on to be heard at the present term on the original bill testimony of Fay Miles Benton, complainant and L.L. Saxon, witness for complainant; and respondent Samuel A. Benton, and, on consideration, it is ordered adjudged, and decreed that the complainant is entitled to the relief prayed for.

"It is therefore ordered that it be referred to the register of this court to ascertain the amount due by the defendant to the complainant for monthly alimony, and as attorney's fee described in the original bill in this cause.

"This the 3d day of September, 1923."

The register reported (September 11, 1923), that $150 per month was a reasonable sum for alimony pendente lite, and $100 a reasonable sum for complainant's solicitor's fee. This report was confirmed by decree on September 22, 1923.

Soon afterward the trial judge died, and nothing further was done until December 6, 1924, when counsel for respondent filed a petition to the new trial judge, praying that the cause be set down for hearing and final decree on December 19, 1924. Thereafter, on January 5, 1925, complainant offered and filed an amendment to the original bill by striking out the prayers for a decree of divorce, and for the right to remarry. Respondent objected to the allowance of the amendment, on numerous grounds, by writing filed on January 7, 1925.

Complainant filed her note of testimony on January 7, 1925, and the transcript shows the following decree rendered (omitting immaterial parts):

"This cause, coming on again to be heard, was submitted for decrees on motion of respondent to substitute lost papers, and on motion of the complainant to allow amendment to the original bill, and for final decree, as noted by the register.

"It appears to the court that the complainant, as a matter of right, is entitled to amend the original bill, as proposed by the amendment filed in this court on the 5th day of January, 1925, and it is ordered, adjudged, and decreed by the court that said amendment be and the same is hereby allowed. This amendment does not change the parties or the nature of the suit, but it simply remits a part of the relief prayed for in the original bill.

"No further testimony has been taken since the decree allowing temporary alimony, and the cause is submitted upon the testimony taken in order to determine the amount of alimony pendente lite, and in the opinion of the court such allowances would be proper for permanent alimony.

"It is further ordered, adjudged, and decreed by the court that the sum of $150 per month be and is awarded to complainant as permanent alimony until the further orders of this court, the said sum of $150 to be paid by the respondent to the complainant on the 1st day of each month hereafter.

"All other questions are reserved.

"Done at Columbiana, Ala., this 12th day of January, 1925.

E.S. Lyman, Judge.

"Filed January 12, 1925."

Respondent duly petitioned for a rehearing, setting up numerous objections to the decree, and the petition was overruled. Respondent appeals.

J.L. Davidson, of Birmingham, and Paul O. Luck, of Columbiana, for appellant.

Fred G. Koenig, of Birmingham, for appellee.

SOMERVILLE J.

Appellant's most important contentions are: 1. That the amendment to the bill of complaint was improperly allowed (1) because it was offered after a final decree settling the main issue in the case, and (2) it changed the nature of the cause, setting up a new and different case, and working injustice to respondent. 2. That, even if allowable, it was necessary that the submission should have been first set aside, and notice of its allowance given to respondent so that he might plead answer, or demur to the bill in its changed aspect. 3. That, in any event, the facts set up in the original bill, though sufficient as a showing for divorce and incidental alimony, do not state a cause of action for separate...