Bulke v. Bulke

• Decision Date: 11 May 1911
• Citation: 173 Ala. 138,55 So. 490
• Parties: BÜLKE v. BÜLKE.
• Court: Alabama Supreme Court

55 So. 490

173 Ala. 138

BÜLKE v. BÜLKE.

Supreme Court of Alabama

May 11, 1911

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

Suit by M. E. Bülke against Paul Bülke. From the decree, defendant appeals. Reversed and rendered.

Sam Will John, for appellant.

John E Miles, for appellee.

SIMPSON J.

The appellee filed a bill for divorce and alimony, and the appeal is from a decree ordering a reference and allowing temporary alimony and attorney's fees pendente lite.

The answer, which is made also a cross-bill, denies all of the grounds set up in the bill for a divorce; alleges immorality and lewdness on the part of the wife; that she lived with him for about a year and three months from their marriage in February, 1902, when she abandoned him and went away with another man, led an open and notoriously lewd life; that she returned in March, 1908, when, on her promise of reformation he "received her and her daughter back into his home and supported and maintained them, as best he could, till March, 1909, when they voluntarily left him and have ever since remained away." It also alleges that, after the complainant left him the first time, she instituted proceedings for divorce, and thereupon a written contract (which is made an exhibit to the bill) was entered into, by which, in consideration of $500, the receipt of which is acknowledged in the contract, said complainant acknowledged "satisfaction and payment of all claims against the said Paul Bülke of every kind for alimony, support, and maintenance," and released all interest, right, and title in all property owned by the respondent.

It is insisted by the appellee--and such seems to be the basis of the decree--that under section 3803 of the Code of 1907 the allowance is a matter of right, without regard to the circumstances of the case. This contention is sustained as a general proposition by our decisions; but, if the husband has already provided for the "support of the wife," the statute cannot mean that she is entitled as a matter of right to additional support. To hold so would be to say that although the husband has conveyed all of his property and assets to provide for the support of the wife, yet she is entitled to an additional decree for the temporary alimony and attorney's fees. The contract explicitly releases him from further liability for her support, and there is no allegation that the wife was overreached. It was clearly a settlement of her demand for divorce and alimony, and if it had not been for her subsequent return to his home no one would hold that she could institute another suit for divorce, and demand, as a matter of right, "an allowance for her support."

It is contended that, by receiving the wife and her...