Crawford v. Crawford

• Citation: 158 Miss. 382,130 So. 688
• Decision Date: 27 October 1930
• Docket Number: 28898
• Court: United States State Supreme Court of Mississippi
• Parties: CRAWFORD v. CRAWFORD

130 So. 688

158 Miss. 382

CRAWFORD v. CRAWFORD

No. 28898

Supreme Court of Mississippi

October 27, 1930

Division A

1 DIVORCE.

Language "marital rights shall cease with decree," in divorce statute, means only that divorce is absolute (Hemingway's Code 1927, section 1480).

2 DIVORCE.

Supreme court must assume that chancellor had ample evidence to support decree allowing alimony from decree itself (Hemingway's Code 1927, section 1483).

3 DIVORCE.

Chancery court could render decree for alimony to quondam wife, subsequent to absolute divorce decree granted husband while wife was in insane hospital (Hemingway's Code 1927, sections 1480, 1483).

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Copiah county, HON. V. J. STRICKER, Chancellor.

Petition by Amanda Crawford against Robert Crawford to enforce payment of a decree for alimony. From a decree holding that decree for alimony was void and discharging respondent, petitioner appeals. Reversed and remanded.

Reversed and remanded.

J. H. Berryman, of Crystal Springs, for appellant.

When a husband brings an action for divorce against his wife, and by reason of sickness, insanity, adversity, or any other good and sufficient cause, the wife did not know an action for divorce was pending, or did not have the capacity to know about it, or if she knew about it, by reason of impovishment, adversity or other causes over which she had no control, it was impossible for her to appear, defend herself or make known her claims for alimony, that in all such cases, she has an absolute right to have her day in court later on, in separate action and to obtain whatever rights the laws of her state provides for her protection.

Lawson v. Shotwell, 27 Miss. 630; Garland v. Garland, 50 Miss. 704; Shotwell v. Shotwell, Smedes & M. Ch. 51.

J. A. Smylie, of Crystal Springs, for appellee.

If the wife obtains a total divorce, she does not after the decree sustain the relation of wife to her former husband, and he is no longer under legal obligation to support her, except such support as may be imposed upon him in the divorce proceedings.

Chapman v. Parsons, 19 Ann. Cas. 453, 66 W.Va. 307; 14 Cyc. 729; McFarland v. McFarland, 51 Iowa 565; Brown v. Brown, 132 Ga. 712, 131 Am. St. Rep. 229; Wood v. Wood, 56 Fla. 882, 47 So. 560; Fountain V. Fountain, 80 Ark. 480, 10 Ann. Cas, 557 and notes; Ex parte Jones, 55 So. 491; Arendale v. Arendale, 26 Ann. Cas. 662; McFarland v. McFarland, 64 Miss. 449; Reed v. Reed, 85 Miss. 126; McCormick v. McCormick, 82 Kan. 33, 107 P. 546; Joyner v. Joyner, 131 Ga. 317, 62 S.E. 182, 18 L. R. A. (N. S.) 647, 127 Am. St. Rep. 220; Keezer on Marriage and Divorce (2 Ed.), sec. 199, page 172.

In all cases of divorce from the bonds of matrimony the marital rights shall cease with the decree.

Sec. 1412, Hemingway's 1917 Code, sec. 1670, Code 1906.

Argued orally by J. H. Berryman, and W. S. Henley, for appellant and by J. A. Smylie, for appellee.

OPINION

McGowen, J.

This case arose in the chancery court on the petition of Amanda Crawford, the appellant, to enforce the payment of a decree for alimony theretofore rendered, and on citation for contempt against Robert Crawford, the appellee, together with the petition to set aside certain conveyances executed by him.

Robert Crawford appeared and filed a plea to the effect that at the time and prior to the time the decree for alimony was rendered, a valid decree of divorce had been entered by a court of competent jurisdiction dissolving the bonds of matrimony between the appellant, Amanda Crawford, and him; that the decree for divorce was res adjudicata to the subsequent suit for alimony; and that the decree for alimony was consequently void for want of jurisdiction. The court below disposed of the case on this plea, holding that the decree for alimony so rendered was void, and discharged the appellee; and from this decree, the appellant, Amanda Crawford, prosecutes this appeal.

The record discloses the following facts: On September 11, 1919, Crawford filed his bill for divorce against Amanda Crawford on the ground of habitual drunkenness and alleged that the appellant was an inmate of the State Insane Hospital. Process was issued to Hinds county, and was returned with the certificate of the superintendent of the State Hospital for the insane attached, in accordance with section 3141, Hemingway's Code 1927, section 3930, Code 1906. At the March, 1920, term, the chancery court of Copiah county rendered its decree granting an absolute divorce to the appellee, Robert Crawford, and dissolving the bonds of matrimony existing between the parties. There was no appearance by the wife, Amanda, in the divorce proceedings, nor was she in any way represented so far as the record shows.

Subsequent to the decree of divorce, on August 28, 1920, Amanda filed her bill against the appellee, Robert Crawford, alleging that the divorce decree theretofore granted was void, that the parties had been married about fifteen years and had lived together until she was incarcerated in the insane hospital at Jackson, four or five years ago. She also alleged that by their joint earnings they had acquired real and personal property to the value of about five thousand dollars. She denied that she was insane, and alleged that no process had been served upon her and that she had had no notice of the divorce suit. She further alleged that she was entitled to one-half of the property, and described it, and prayed the court to decree her a one-half interest in the property, or, in the alternative, alimony. She denied the charge of habitual drunkenness.

The defendant's or appellee's answer was a denial of the material allegations of the bill, and could in no wise be construed to be a plea of res adjudicata. The record shows that the case was taken under advisement by the chancellor, and that on October 12, 1921, a decree was rendered allowing seventy-two dollars alimony to be paid in cash, and twelve dollars a month thereafter until further order of the court. The petition for enforcement of this decree, filed in 1920, alleged that no part of this sum had been paid.

This appeal presents squarely one question: Has the chancery court the jurisdiction and power to render a decree for alimony to a quondam wife subsequent to an absolute decree of divorce granted the husband? The last sentence of section 1480, Hemingway's Code 1927, section 1670, Code 1906, is in this language: "In all cases of divorce from the bonds of matrimony, the marital rights shall cease with the decree." Section 1483, Hemingway's Code 1927, section 1673, Code 1906, is in this language: "When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody, and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife, or any allowance to be made to her, and may, if need be, require sureties for the payment of the sum so allowed; and the court may afterward, on petition, change the decree, and make from time to time such new decrees as the case may require."

The language quoted from section 1480, supra, has, in substance, appeared in our Codes since 1857. It was early contended that the statute precluded an allowance to the wife, or separate maintenance or alimony without a decree of divorce; and this matter was thoroughly considered by our courts and decided adverse to the contention in the case of Garland v. Garland, 50 Miss. 694; Verner v. Verner, 62 Miss. 260; McFarland v. McFarland, 64 Miss. 449, 1 So. 508, 509; Scott v. Scott, 73 Miss. 575, 19 So. 589, by which cases, we think, it is now thoroughly settled in Mississippi that alimony may be decreed upon a bill therefor by the wife in which no divorce is sought.

Chancellor SCOTT in the case of Shotwell v. Shotwell, S. & M. Ch. 51, held, after a discussion of English and American cases, that the powers of the chancery court were commensurate with those of the spiritual courts of England, and that a separate suit might be maintained for alimony subsequent to a decree for a divorce obtained at the instance of the wife.

The high court of errors and appeals, in the case of Lawson v. Shotwell, 27 Miss. 630, speaking through Mr. Justice FISHER, on appeal of that case, had this to say with reference to the power and jurisdiction of the chancery court to grant alimony subsequent to a decree of divorce: "We do not intend to intimate that there may not be cases in which an original bill, after a decree for a divorce could not be maintained for alimony, but only that the present bill shows no sufficient reason for not taking, or at least asking, such a decree from the circuit court, touching the matters now in litigation. A good reason must be alleged why the...