Brindley v. Brindley

• Decision Date: 20 April 1899
• Citation: 121 Ala. 429,25 So. 751
• Parties: BRINDLEY v. BRINDLEY.
• Court: Alabama Supreme Court

25 So. 751

121 Ala. 429

BRINDLEY v. BRINDLEY.

Supreme Court of Alabama

April 20, 1899

Appeal from chancery court, Cullman county; William H. Simpson Chancellor.

Bill by Annie Brindley against B. P. Brindley, husband of the complainant, for the allowance of alimony without the granting of a divorce. The grounds upon which the alimony was asked, and the facts of the case, are sufficiently stated in the opinion. Upon the final submission of the cause upon the pleadings and proof, the chancellor decreed that the complainant was not entitled to the relief prayed for in her bill, and permanent alimony was denied the complainant. It was, however, adjudged by the chancellor that "the decree for alimony pendente lite must be observed and performed. The complainant was entitled to that as a matter of right under the statute, and it is still a subsequent liability solemnly decreed by the court, and is not affected by the failure of the complainant to obtain relief on the final hearing"; and in accordance with this holding the chancellor declared a lien on the defendant's lands for the payment of the monthly allowances as theretofore ascertained by the register, up to the rendition of the final decree, and for the complainant's solicitor's fee and accordingly ordered the sale of said lands if such allowances and solicitor's fee were not paid within 60 days after the date of the rendition of the decree. From this decree the defendant appeals, and assigns the rendition thereof as error. Reversed.

J. B Brown, for appellant.

A. L. Brown and J. J. Curtis, for appellee.

HARALSON, J.

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 as 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). Under 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 plaintiff, it should appear that the suit is brought in good faith, and not merely for the purpose of obtaining money from her 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.

In Spitler v. Spitler, 108 Ill. 124, it was determined, and, as for the case we have in hand, pertinently said, that "in the absence of statutory provisions controlling the question, when the husband obtains a divorce on account of the misconduct of the wife, the latter will not be entitled to alimony. 2 Bish. Mar. & Div. (4th Ed.) §§ 376, 377. Looking at the question on principle, the rule is certainly in harmony with other general rules governing the marital relation, as, for instance, the common-law duty of the husband to support the wife is not absolute. He is bound to support her at the common home, and not under another's roof, unless his own improper conduct has forced her to seek shelter elsewhere. Hence if she abandons her home without cause, the right to support from her husband at once ceases." And this is true not only where the wife abandons the husband without justifying cause, but where, from her own fault, he abandons her. Angelo v. Angelo, 81 Ill. 251; Thompson v. Thompson, 3 Head, 527; Boggess v. Boggess, 4 Dana, 307, 309; Martin v. Martin, 8 N. J. Eq. 563; Begbie v. Begbie, 7 N. J. Eq. 98; Anon., 4 Desaus. Eq. 94; Kock v. Kock, 42 Barb. 515. If these principles uncontrolled by statute are correct for the allowance of alimony pendente lite in suits for divorce, they apply with equal or greater reason to proceedings for alimony alone independent of divorce.

The court, on the prima facie case presented in complainant's bill, ordered a reference to ascertain the defendant's faculties and what would be a proper allowance. The register upon evidence taken, reported $6 a month and $25 solicitors' fees to be proper, which report was confirmed. An appeal was taken and the decree affirmed. 115 Ala. 474, 22 So. 448. It was said in that case, in review of the lower court's action, "We have examined the evidence taken before the register, and are reasonably satisfied that the allowance made is not excessive. The amount allowed by the court upon the report of the register is...