Diamond v. Diamond, 52833

Decision Date02 September 1981
Docket NumberNo. 52833,52833
PartiesJack Robert DIAMOND v. Doris F. DIAMOND.
CourtMississippi Supreme Court

Joseph R. Meadows, Graves, Riley, Meadows & Walker, Gulfport, for appellant.

Alfred R. Koenenn, Gulfport, for appellee.

Before PATTERSON, C. J., and SUGG and BROOM, JJ.

SUGG, Justice, for the Court:

Appellant sued his wife for divorce in the Chancery Court of Hancock County. He alleged that the six-year old daughter of the parties was in the custody of appellee, who was a fit and suitable person to have the custody of the child, and that he was willing and able to pay $350 per month as child support. He prayed that custody of the child be awarded to appellee subject to his right to have the child visit him. Appellee filed an answer but did not file a cross-bill for affirmative relief. The trial court granted appellant a divorce, awarded appellee $1,200 per month alimony, custody of the child, together with $350 per month for child support, ordered appellant to furnish an automobile for appellee and the child during minority of the child, and to make all mortgage payments on the homestead of the parties.

On appeal, appellant contends the trial court erred by requiring him to pay alimony, to furnish an automobile to appellee and their minor child, and to make the mortgage payments on the homestead of the parties. Appellant does not question the award of support of the child and the other provisions of the final decree, so the question is whether the court erred in granting appellee affirmative relief as to the items appealed from without filing a cross-bill.

Appellee was awarded alimony pursuant to section 93-5-23 Mississippi Code Annotated (Supp.1980), which provides:

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 the husband, or any allowance to be made to her or him, and may, if need be, require sureties for the payment of the sum so allowed. The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require. However where proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each.

Although the chancery court is authorized under the above statute to fix the amount of alimony as may seem equitable and just, taking into consideration the circumstances of the parties, this may be done only after the question of alimony is presented to the court by proper pleadings. In Fondren v. Batton, 348 So.2d 431 (Miss.1977), we held the chancery court was without authority to award a wife alimony in a divorce proceeding where the wife's bill only prayed for divorce, restoration of her maiden name, and for general relief. We observed that due process required the husband to have fair notice in an appropriate pleading that alimony was being sought so that he might answer and offer evidence pertaining to the allowance of alimony.

In Scott v. Scott, 219 Miss. 614, 69 So.2d 489 (1954), we affirmed a decree denying the award of alimony because the wife did not ask for the allowance of alimony in her bill of complaint. In this case, if the wife desired to have the trial court consider the question of alimony, she should have filed a cross-bill. In Millsaps v. Pfeiffer, 44 Miss. 805 (1870), we held that a defendant cannot pray anything in an answer except to be dismissed with costs and if he desires affirmative relief, he must file a cross-bill. There are exceptions to the rule, but allowance of alimony to a defendant who does not file a cross-bill is not one of the exceptions. 1

The question of alimony was not presented to the court by appellee in her pleadings. Th...

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12 cases
  • Queen v. Queen, 58701
    • United States
    • Mississippi Supreme Court
    • 2 août 1989
    ...an express demand therefor. This rule, however, was a function of our case law and was in no way mandated by statute. Diamond v. Diamond, 403 So.2d 129, 131 (Miss.1981); Fondren v. Batton, 348 So.2d 431, 432 (Miss.1977). The statute merely empowers the court to "make all orders ... touching......
  • Nichols v. Tedder
    • United States
    • Mississippi Supreme Court
    • 28 juin 1989
    ...parent to furnish an automobile and make mortgage payments as part of an award for the care and maintenance of children. Diamond v. Diamond, 403 So.2d 129 (Miss.1981). Of course, the foregoing items are not intended to be an exclusive listing, but are merely examples of the real distinction......
  • Pierce v. Pierce, 91-CA-00809
    • United States
    • Mississippi Supreme Court
    • 13 octobre 1994
    ...and child support where such is not sought in the pleadings is error, in that it deprives the husband of due process. Diamond v. Diamond, 403 So.2d 129 (Miss.1981); Fortenberry v. Fortenberry, 338 So.2d 806 (Miss.1976). These cases, however, do not characterize the judgment as void. Had Mr.......
  • MATTER OF CONTRACTION AND DEANNEXATION OF GRENADA, No. 2002-AN-01492-SCT
    • United States
    • Mississippi Supreme Court
    • 1 juillet 2004
    ...ask for this relief in their complaint or pleadings; and therefore, the chancery court cannot award it. The City cites Diamond v. Diamond, 403 So.2d 129 (Miss.1981); Miller v. Miller, 512 So.2d 1286 (Miss.1987); and Crowe v. Crowe, 641 So.2d 1100 (Miss.1994), all cases involving whether an ......
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