Brown v. Brown

• Decision Date: 13 February 1915
• Docket Number: 748
• Citation: 146 P. 231,23 Wyo. 1
• Parties: BROWN v. BROWN
• Court: Wyoming Supreme Court

146 P. 231

23 Wyo. 1

BROWN v. BROWN

No. 748

Supreme Court of Wyoming

February 13, 1915

ERROR to the District Court of Sheridan County, HON. CARROLL H PARMELEE, Judge.

The material facts are stated in the opinion.

Reversed.

Camplin & O'Marr, for plaintiff in error.

The remedy of a wife living separate and apart from her husband in a proceeding by her against her husband under Section 3937 Compiled Statutes, 1910, is limited to the support of the wife and children or either. (Arnold v. Arnold, 39 N.E. 862 (Ind.). Other payments may be ordered in the discretion of the court under the provisions of Section 3931 Compiled Statutes, 1910, pending actions for divorce. No suit money, or money to carry on, or to defend the action or counsel fees, are contemplated by Section 3937 and such cannot be allowed without exceeding the power given. (Therkelson v. Therkelson, 54 P. 885.) Permanent alimony, the adjudication of property rights and the enforcement of property agreements do not come within the scope of the section cited. A husband has a right to have the custody and control of his wife and to fix his domicile where she must reside. (Am. Eng. Enc. of Law, 2 Ed. 812-814; Randall v. Randall, 37 Mich. 563; 10 Enc. P. & P 199.) It must be shown that the wife is without fault before support may be decreed. (Margarum v. Margarum, 41 A 357; 57 N. J. Eq. 249; Fowler v. Fowler, 49 P. 589.) The evidence is insufficient to support the judgment and the judgment is contrary to law. (Kusel v. Kusel, 81 P. 295; Fowler v. Fowler, 49 P. 589; Stanbrough v. Stanbrough, 60 Ind. 275; Schindle v. Schindle, 12 Md. 294; Davidson v. Davidson, 47 Mich. 151, 10 N.W. 179; Wahle v. Wahle, 71 Ill. 510; Angelo v. Angelo, 81 Ill. 251; Cooper v. Cooper, 4 Ill.App. (4 Bradw. 439); Hogland v. Hogland, 10 Ky. Law Reps. 241; Houts v. Houts, 17 Ill.App. (17 Bradw. 439.) If the wife be guilty of misconduct contributing to the cause of separation, she is not entitled to recover. (Anderson v. Anderson, 45 Ill.App. 168; Meeker v. Meeker, 27 A. 78; Hunter v. Hunter, 7 Ill. App., (7 Bradw. 253); Van Duzer v. Van Duzer, 70 Iowa 614; 31 N.W. 956; Boyd v. Boyd, Harp. Eq., 144; Rhame v. Rhame, 1 McCord Eq., 197; 16 Am. Dec., 597.) The court will look to the provocation, as well as the reciprocal duties. (Mayhugh v. Mayhugh, 46 Ky. 425.) The allowance will be only so much in addition to the wife's own inheritance, as will maintain her in decency and comfort during separation. (Logan v. Logan, 41 Ky. 142.) A settlement will not be made detrimental to the husband's creditors, whose claims existed prior to the claim asserted by the plaintiff. (Spears v. Reed, 4 Ky. Law Reps., 894.) The allowance is not a personal judgment, as for alimony, but a mere temporary allowance. (Stanbrough v. Stanbrough, 60 Ind. 275.) The obligation of a husband to support his wife does not extend to supporting her outside of the matrimonial home, unless he refuse to do so there. (Richardson v. Stuesser, 103 N. W., 261; 125 Wis. 66; 69 L. R. A., 829; Thomas v. Thomas, 152 Ill. 577; 38 N.E. 794; Harris v. Harris, 109 Ill.App. 148; Scott v. Scott, 42 S. W., 836; Youngs v. Youngs, 78 Mo. App., 225; Price v. Price, 106 N. W., 657; 75 Nebr., 552; Dummer v. Dummer, 41 A. 149.) Profane or insulting language by the husband does not justify alimony. (Wise v. Wise, 38 S. E., 794.) Misconduct on the part of the wife will defeat a claim for support. (Harris v. Harris, 109 Ill.App. 148; Simms v. Simms, 74 S. W., 1074; Ross v. Ross, 109 Ill.App. 157.) The spouse first repudiating marital obligations must show freedom from fault in actions for separate maintenance. (Chapman v. Chapman, 104 N. W., 880; Kusel v. Kusel, 81 P. 295; Doole v. Doole, 148 Mass. 278; 10 N. E., 811.) It is error to render a judgment for a gross sum and to award execution therefor. (Chapman v. Chapman, supra.) It is error to make the allowance upon personal property of the defendant. (Harris v. Harris, 109 Ill.App. 148; Randall v. Randall, 37 Mich. 563.) The court should retain the case after allowance for the purpose of regulating the same. (Logan v. Logan, 41 Ky. 142; Lockridge v. Lockridge, 41 Ky. 258; Isaacs v. Isaacs, 89 N. W., 268.) Wilful desertion will defeat a claim for support. (Bonney v. Purham, 102 Ill.App. 634; Peaks v. Mayhew, 48 A. 172; Palster v. Palster, 123 S. W., 81; Kline v. Hacbarth, 65 S. W., 1086.) Statutes authorizing allowances for support must be strictly construed. (Raab v. Raab, 150 Ill.App. 554; Herrett v. Herrett, 111 P. 867.) The wife must show that she is without fault. (Raab v. Raab, supra; Kingman v. Kingman, 150 Ill.App. 456; Kinsey v. Kinsey, 124 N.Y.S. 30; Garbrandt v. Garbrandt, 115 S. W., 210.) The proceeding is special and other claims cannot be engrafted upon it. (13 Current Law, 2200; Sharpe v. Sharpe, 134 Mo. App., 278; 114 S. W., 584; Shores v. Shores, 110 N. W., 16; 133 Iowa. 22.) The District Court Commissioner acted beyond his jurisdiction in awarding a money judgment, lien and execution. (Huhn v. Quinn, 128 P. 514; Sec. 922 Comp. Stats., 1910; Sec. 14, Art. 5, Wyo. Constitution.) The Court Commissioner awarded more than plaintiff asked for and thus exceeded his jurisdiction. It was erroneous to award a money judgment in a proceeding based upon a summary notice. (Sharpe v. Sharpe, 134 Mo. App., 278; Clisby v. Clisby, 81 P. 295.) The judgment was erroneous. (Benton v. Benton, 55 P. 152.) Separation is not favored by the courts. (Randall v. Randall, supra.) The door should be kept open for reconciliation. (Logan v. Logan, 41 Ky. 142; Lockridge v. Lockridge, supra; Brindley v. Brindley, 22 So. 448.) The petition is insufficient to confer jurisdiction under the statutes. (Fowler v. Fowler, 49 P. 589; 10 Enc. P. & P., 199; Simms v. Simms, 74 S. W., 1074; Chapman v. Chapman, supra.) Plaintiff was a non-resident and was not entitled to a homestead right. (Uhlman v. Abbott, 10 Wyo. 114; Alkius v. Alkius, 18 Nebr., 474; Smith v. Smith, 19 Nebr., 711; Simms v. Simms, 74 S. W., 1074.) The burden of proof is upon plaintiff to show she is living separate and apart from her husband without her fault. (Fowler v. Fowler, 49 P. 598.) The evidence shows that plaintiff was and had been consorting with persons of bad repute. The judgment is void for want of jurisdiction.

Enterline & LaFleiche, for defendant in error.

The husband is the head of the household and is obligated by the marriage compact to protect, shelter and support his wife. Courts will require him to do this, whether the husband and wife are living together or separately, or whether proceedings for divorce are pending or not. Such is the purpose of the statute under which this proceeding was brought. Counsel contends that it was error to award the wife a lump sum. If an allowance is proper, it is immaterial whether it be allowed in a lump sum, or in installments. The discretionary powers of the court under Section 3937 are broad and its orders may be enforced in the same manner, as if made in a pending action.

District Court Commissioners are authorized to make any order, which a Judge of the District Court is authorized to make in chambers, if such Judge be absent from the county. (Subdiv. 1 of Sec. 922 Comp. Stats., 1910.) Such orders shall be approved, disapproved, reversed or modified by the District Court. (Sec. 925 Comp. Stats., 1910.) The Commissioner's order in this case was confirmed by the District Court on January 10th, 1913. Defendant filed a motion for a new trial on September 13th, 1913, setting forth assignments of error committed by the Court Commissioner. On January 18th, 1913, defendant filed another motion for a new trial, and moved the court to vacate the order and judgment of confirmation entered by the District Court on January 10th, 1913, as well as the Commissioner's order made and entered on the 6th day of September, 1912. The only proper remedy under defendant's motion of January 18th, 1913, would be a vacation of the confirmation order of the District Court. The only relief that defendant can obtain in this court would therefore be a reversal of the order made by the District Court confirming the Commissioner's proceedings. But, no grounds are set forth in defendant's motion for the vacation of the confirmation order, nor are errors specified therein. Hence, no relief can be granted here. The motion for a new trial addressed to the District Court contains sixteen assignments of error, but that motion is inconsistent with the motion made by defendant to vacate the confirmation order. The confirmation order was the only final order made by the District Court and the only order reviewable under Section 5107 Compiled Statutes, 1910. The only proper method of attacking Commissioners' orders is by motion to the District Court to refuse confirmation thereof. This presents the question as to whether the Commissioner acted within his authority. Such an order was filed by defendant and the ruling of the District Court thereon is the only question reviewable here; but, there being no grounds of exception presented by defendant in that motion, the same must be disregarded. (School District Number Three v. Western Tube Company, 5 Wyo., 190.)

The procedure adopted by defendant resembles that of a case tried in the first instance in Justice Court and thereafter carried to the District Court and a trial de novo had and the defeated party in the District Court cut across from the Justice Court to the Supreme Court, assigning, as grounds for a new trial, errors alleged to have been committed by the Justice of the Peace. The ruling of the District Court not being assigned as error, or mentioned in the motion for a new trial, said ruling is not before this court for review and defendant is not entitled to any relief whatsoever in this court.

Camplin &...