Clisby v. Clisby

• Citation: 49 So. 445,160 Ala. 572
• Parties: CLISBY v. CLISBY.
• Decision Date: 09 April 1909
• Court: Supreme Court of Alabama

49 So. 445

160 Ala. 572

CLISBY v. CLISBY.

Supreme Court of Alabama

April 9, 1909

Rehearing Denied May 11, 1909.

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by Daisy I. Clisby against A. A. Clisby. From a decree in favor of complainant, she appeals. Affirmed in part, and reversed in part.

S. D. &amp J. B. Weakley and B. B. Boone, for appellant.

Augustus Benners, for appellee.

MAYFIELD J.

This is an appeal by the wife from a final decree (final, so far as such decrees are ever final) awarding her permanent alimony. Her bill was for alimony alone. It sought no divorce; but she did, by a petition in conjunction with her bill, seek alimony pendente lite and counsel fees. A reference was ordered as to her petition for alimony pendente lite. The register reported, and allowed the wife $100 per month, for support of herself and children, pending the suit, together with $400 as counsel fees. The chancellor, on the hearing of this report February 26, 1908, allowed the wife, as alimony pendente lite, $100 per month, beginning November 6, 1907, but denied counsel fees. On the final hearing the chancellor continued the allowance of $100 per month, to date from March 11, 1908 the date of the decree, and disallowed any counsel fees, or anything further as maintenance, pending this appeal.

The original bill was filed February 2, 1907. The bill was amended March 23, 1907, by setting up the fact that the wife had two of the children--the result of the marriage--to support and care for, by setting out more fully the means of the husband, and also by averring a breach of the agreement made between the husband and wife, after their separation and before the filing of the bill, by which he promised to pay her $100 per month as for her support. The bill alleges, and the proof shows, that it was on account of the husband's breach of this agreement and of his failure to pay the monthly allowance that suit was brought, and that he is now only required to do and perform what he himself deemed proper and agreed to do. There was no appeal from the decree or order allowing, or fixing allowance, of maintenance pending the suit, nor is it insisted on this appeal that this decree or order should be reviewed; but it is insisted that on the final decree the wife should have been allowed as permanent alimony compensation for counsel fees, and that her allowance should have dated from the time when the husband refused to perform his agreement to pay her $100 per month for her support. Consequently the rule announced in the case of Brady v. Brady, 144 Ala. 414, 39 So. 237, cannot apply to this appeal, which is from the final decree for permanent alimony, and not from the allowance pendente lite.

Chancery courts of this state have exercised original jurisdiction to award alimony, independently of a bill for divorce, to a wife who has been abandoned by her husband, since the year 1849. The question was first decided in the case of Glover v Glover, 16 Ala. 440. This same case was subsequently before this court, and the doctrine reannounced. Since that time numerous cases have been brought in this state, based upon that doctrine, and the principle has never been departed from, but reaffirmed time and time again. As announced in the first case, this was a departure from the English doctrine, which was that chancery would refuse to entertain a bill for alimony alone, unless the parties had entered into an agreement that it should be allowed. Most courts have followed the English rule, but some have followed the Alabama rule. Mr. Story, speaking of the Alabama rule, or the rule adopted by this court, said: "There is so much sense and reason in the doctrine that it might be wished that it was generally adopted." The jurisdiction is made to rest upon the unquestioned duty of the husband to support the wife and the inadequacy of legal remedies to enforce the duty. The wife's claim in the matter is purely an equitable one, and, as this...