Buttrey v. Buttrey

• Decision Date: 18 March 1926
• Docket Number: 8 Div. 805
• Citation: 108 So. 35,214 Ala. 465
• Parties: BUTTREY v. BUTTREY.
• Court: Alabama Supreme Court

108 So. 35

214 Ala. 465

BUTTREY v. BUTTREY.

8 Div. 805

Supreme Court of Alabama

March 18, 1926

Rehearing Denied April 22, 1926

Appeal from Circuit Court, Morgan County; J.E. Horton, Judge.

Suit in equity by Mary E. Buttrey against John A. Buttrey. From a decree denying complainant's petition for increased allowance as maintenance for a child, complainant appeals and applies for alternative writ of mandamus. Appeal dismissed mandamus denied.

E.W Godbey, of Decatur, for appellant.

Eyster & Eyster, of Albany, for appellee.

GARDNER J.

On April 27, 1925, a final decree of divorce was rendered in favor of Mary E. Buttrey against her husband, John E Buttrey, in which alimony was awarded, payable in a lump sum, and the custody of the foster child, Dorothy, legally adopted, awarded complainant with an allowance of $20 per month for her maintenance. The decree further stipulated that:

"Said order is subject to change or modification as the court may deem proper at any time in the future, and this cause is retained for the purpose of making any changes in the future as the court may deem proper."

On July 15, 1925, said complainant filed her petition in this cause seeking an increase in the allowance for the child, Dorothy, a copy of which was duly served upon the defendant John Buttrey. The petition refers to and makes a part thereof the records, proceedings, and decrees theretofore rendered in the cause, but only the original bill, note of testimony, and final divorce decree rendered are embodied in the record here presented. This petition was considered by the chancellor who had rendered the final decree, and an order entered denying the relief therein prayed for, and taxing petitioner with the costs. From this decree petitioner has prosecuted this appeal, and moves also for an alternative writ of mandamus in the event an appeal does not lie.

The authorities vary as to the right of appeal from such order or petition for modification. Various appeal statutes are considered in 19 Corpus Juris, 360. Following by analogy the holding of this court in Hayes v. Hayes, 68 So. 351, 192 Ala. 280, we are of the opinion such an order does not constitute a final decree within the contemplation of our statute for appeals from final decrees, but is of an interlocutory character, from which no appeal is provided. The appeal therefore will be dismissed and the cause considered on the alternative motion for mandamus.

In hearings of this character it has been held, and we think properly so, that the court is not bound by any strict rules of pleading or procedure (Arne v. Holland, 89 N.W 3, 85 Minn. 401; Morrill v. Morrill, 77 A. 1, 83 Conn. 479; 17 Corpus Juris, p. 359), and such a petition for modification is addressed to the sound discretion of the court. Authorities, supra. "The test to determine the validity of the court's order in such...