Drew v. Drew

• Decision Date: 12 January 1933
• Docket Number: 6 Div. 205.
• Citation: 145 So. 495,226 Ala. 43
• Parties: DREW v. DREW.
• Court: Alabama Supreme Court

145 So. 495

226 Ala. 43

DREW v. DREW.

6 Div. 205.

Supreme Court of Alabama

January 12, 1933

Appeal from Circuit Court, Jefferson County; T. J. Bedsole, Judge.

Bill for separate maintenance by Margaret Drew against C. W. Drew. From a decree overruling a demurrer to the bill, respondent appeals.

Affirmed.

H. M Abercrombie and Jarrett Abercrombie, both of Birmingham, for appellant.

Coleman Spain, Stewart & Davies, of Birmingham, for appellee.

KNIGHT J.

Appellant has here assigned for error three separate decrees rendered in this cause. The bill was filed by appellee (wife) against the appellant, her husband, seeking support money, but not a divorce, and in her bill she avers that her husband voluntarily abandoned her, through no fault on her part, and has failed and refused to adequately maintain her. In the fifth paragraph of the bill the complainant avers: "That the respondent is a locomotive engineer and is employed by the Southern Railway Company, and receives a monthly salary of approximately one hundred and seventy dollars."

The bill was subsequently amended by adding thereto an additional paragraph in words as follows: "That your complainant is now and has been since her abandonment by the respondent in necessitous and dire circumstances; that she has no estate of her own to maintain herself and has been and is now dependent upon the charity of friends for her food and shelter; that she is in a delicate state of health and is in need of medical attention, and that she has no means with which to procure the services of a physician."

It is here argued by appellant that the bill is defective in not averring that the respondent has an estate, and describing it, out of which the court can grant the allowance. In support of appellant's contention, our attention is called to the following cases: Lawrence v. Lawrence, 141 Ala. 356, 37 So. 379; Lovett v. Lovett, 11 Ala 763; Murray v. Murray, 84 Ala. 363, 4 So. 239, and Apperson v. Apperson, 217 Ala. 157, 115 So. 229.

While good pleading would seem to suggest that if the husband owns property, that fact should be averred in the bill; and if the bill was silent in that respect, and there was no averment otherwise showing that he had an income, no doubt the bill would be subject to demurrer. It is however the income of the husband that this court must deal with in granting alimony.

It may be that the appellant has no property; yet the bill avers that he is a locomotive engineer, in the employ of the Southern Railway Company, earning and drawing a monthly salary of $170. While the court cannot compel him to labor and earn an income, yet, so long as he does earn and draw this salary, this court can, by its strong arm, require him to contribute some part of the same in discharging the moral and legal duty he owes, as husband of complainant, to her support. This duty he also owes to society. This obligation, as is well said in Murray v. Murray, 84 Ala. 363, 4 So. 239, 240, and reaffirmed in other pronouncements of this court, is not merely contractual. Its "disregard and breach partake largely of the nature of a tort. The chancery court may and does enforce their observance by attachment of the person of the husband, and this is not imprisonment for debt, within the prohibition of our constitution." Lyon v. Lyon, 21 Conn. 185; Ex parte Hardy, 68 Ala. 320; Chase v. Ingalls, 97 Mass. 524; Logan v. Logan, 2 B. Mon. 142; Wightman v. Wightman, 45 Ill. 167; Grimm v. Grimm, 1 E. D. Smith (N. Y.) 190.

In the case of Gibson v. Gibson, 203 Ala. 466, 83 So. 478, 479, the Chief Justice of this court, in commenting upon, and quoting from Murray v. Murray, supra, says: "Yet we have also held that in arriving at the proper amount of alimony the court should take into consideration the age, vigor, and other earning capacity of the man." And of course, if he was earning and drawing a salary, this should be taken into consideration, in determining and fixing the amount of alimony to be allowed.

And in the case of Ex parte Whitehead, 179 Ala. 652, 60 So. 924, it is said, in an opinion by the late Justice Sayre: "If an allowance for alimony pendente lite ought to be limited with reference to the earning capacity of petitioner's invested capital, the amount decreed would be considered excessive. But petitioner's earning capacity is not limited to his income from invested capital. He is young and vigorous and has been actively engaged in business earning on an average, as we...