Brady v. Brady

• Decision Date: 16 February 1905
• Citation: 144 Ala. 414,39 So. 237
• Parties: BRADY v. BRADY.
• Court: Alabama Supreme Court

39 So. 237

144 Ala. 414

BRADY v. BRADY.

Supreme Court of Alabama

February 16, 1905

Appeal from Chancery Court, Elmore County; Richard B. Kelly Chancellor.

Suit by L. M. Brady against James N. Brady. From a decree for complainant, respondent appeals. Ordered that rule nisi issue to the chancellor.

It was averred in the bill that complainant had lived with the respondent as his wife for several years, faithfully and affectionately performing all of her marital duties, until a short time before the filing of the bill, when the respondent sent her away to her brothers; that the respondent had often threatened and abused her, that he had sent her away without money or means of support, and that she had no means of support except that which was given her by her brothers; that she had no property, except a small tract of unimproved land and that her husband was a farmer, owning a good farm of over 100 acres, and had other property. The prayer of the bill was for alimony pending the suit and attorney's fees, and upon the final hearing, that the complainant be decreed a certain amount as permanent alimony or allowance. Upon the final submission of the cause upon the pleadings and proof the chancellor decreed that the complainant was entitled to the relief prayed for.

C. O. E. Timmerman, for appellant.

ANDERSON J.

The complainant filed her bill for alimony and counsel fees against her husband, but sought no divorce. A reference was ordered and had, and the report of the register recommended $25 for attorney's fees and $12.50 per month for the complainant. Whereupon the chancellor confirmed said report, and ordered the respondent to pay over $100 to the register to pay said solictor's fees, and the monthly payments to the complainant pending this suit, and ordered respondent to jail in default of the payment of said $100.

"It is firmly settled by the decisions of this court, in consonance with the decisions of the courts of other states, although it may be that the weight of authority in England and this country is opposed to the doctrine, that courts of equity have jurisdiction to grant alimony to a married woman in the nature of maintenance, unconnected with any proceedings for divorce. Hinds v. Hinds, 80 Ala 225; Murray v. Murray, 84 Ala. 363, 4 So. 239; Brindley v. Brindley, 115 Ala. 474, 22 So. 448. In this state we have no statute providing for alimony disconnected with a suit for divorce, and for independent proceedings in that behalf we are remitted to the general principles of equity courts in the adjudication of rights between the parties. But in divorce suits the statute does provide that, 'pending a suit for divorce, the court must make an allowance for the support of the wife out of the estate of the husband, suitable to the condition of his estate and the condition in life of the parties.' Code 1896, § 1495 (2331). Uuder the construction placed on this statute, the allowance of temporary alimony, or alimony or support pending the suit, is matter, not of discretion, but of right. Edwards v. Edwards, 80 Ala. 97. Independent of statute providing otherwise, it is the generally conceded rule, that the allowance of alimony pendente lite in suits for divorce is not a matter of absolute right, but rests in the sound discretion of the court. 2 Am. & Eng. Enc. Law (2d Ed.) 101. In a suit prosecuted by the wife for alimony alone, it is manifest, therefore, that a court of equity in this state is not bound by the section of the Code above quoted to allow it as a matter of right. Another well-recognized principle in divorce suits, uninfluenced by statute, is that, 'although alimony pendente lite should be allowed without an examination of the merits of the case, yet a prima facie case must be shown in behalf of the wife, and, where she is the libelant or the plaintiff, it should appear that the suit is brought in good faith, and not merely for the purpose of obtaining money from the husband; for if it appears that the suit is without just or reasonable foundation, or is prompted by malice or oppression towards her husband, or that the husband's success is very apparent, no allowance should be made to the wife.' 2 Am. & Eng. Enc. Law (2d Ed.) 101." Brindley v. Brindley, 121 Ala. 430, 431, 25 So. 751.

The bill doubtless makes out a prima facie case for equitable relief, but we question the propriety of confirming the report upon the evidence before the register when holding the reference, as the complainant failed to satisfactorily establish her allegation, but the weight of the evidence was that she left her husband's bed and board of her own volition, and there was absolutely nothing to negative his willingness for her to return. The complainant testified to facts (if true) that were calculated to make her position in respondent's home unpleasant; also that he told her, when she left, that he hoped to not see her again until "judgment day." Respondent denied any unkind treatment, and testified that his wife was not driven off by him, but went on a visit to her people. Complainant corroborated the respondent on her cross-examination by admitting that she told respondent's son, Milton, the day she left, to tell his father...