Ex parte Gurganus

• Decision Date: 18 November 1948
• Docket Number: 6 Div. 742.
• Citation: 37 So.2d 591,251 Ala. 361
• Parties: Ex parte GURGANUS.
• Court: Alabama Supreme Court

37 So.2d 591

251 Ala. 361

Ex parte GURGANUS.

6 Div. 742.

Supreme Court of Alabama

November 18, 1948

Powell & MacLaurin, of Jasper, for petitioner.

Roy Mayhall, of Jasper, for respondent.

STAKELY, Justice.

This is an original petition to this court by W. E. Gurganus for mandamus to Hon. Roy Mayhall, Judge of the Circuit Court of Walker County, in Equity, to compel the vacation of a decree providing for temporary alimony in a cause wherein Lathia Gurganus is seeking, among other things, a divorce from W. E Gurganus. According to the decree W. E. Gurganus is required to pay to Lathia Gurganus the sum of $50 a month and to deliver to Lathia Gurganus the exclusive possession of a certain house and lot in Parrish, Alabama. The cause here has been submitted on the petition for mandamus, the demurrer and answer of Judge Roy Mayhall to the petition, the record in the proceedings for divorce and the testimony taken before Judge Mayhall on the application for alimony pendente lite.

On February 1, 1946, W. E. Gurganus obtained a divorce decree from Lathia Gurganus in Winston County, Alabama. The decree was obtained on service by publication upon affidavit showing that Lathia Gurganus was a nonresident of the State of Alabama and her address unknown. The evidence in the present cause shows without dispute that W. E. Gurganus was never a resident of Winston County and that he did at all times reside in Walker County, Alabama; that Lathia Gurganus was at all times a resident of Walker County, Alabama, and never out of the State of Alabama for more than a period of a few days when she visited a relative in Virginia with the knowledge and consent of her husband who furnished money for her transportation. The evidence in the present proceeding shows that the witness who testified for W. E. Gurganus in the proceedings in Winston County did not in fact give the testimony as shown by the deposition in that case. The undisputed evidence in the present case shows that the divorce decree in Winston County was obtained without notice to Lathia Gurganus and without her knowledge and that the testimony on which the alleged divorce decree was obtained was false.

The bill filed by Lathia Gurganus in the present cause in the Circuit Court of Walker County, in Equity, is in the nature of a bill of review to set aside the Winston County divorce decree. The present bill also seeks a divorce by Lathia Gurganus from W. E. Gurganus on the ground of voluntary abandonment and among other things prays for alimony pendente lite. In the decree awarding alimony pendente lite, in referring to the Winston County divorce decree, the court said: 'It is the further decree of the Court that the divorce obtained by the defendant in the Circuit Court of Winston County, Alabama is void, as jurisdiction of the respondent in that case was never acquired, she having been at all times a resident of Walker County, Alabama, which fact was known to W. E. Gurganus at the time said bill for divorce was filed. The Court does not render a final decree holding said decree void, but does decree that said divorce is void so far as decreeing temporary alimony to the complainant in this case.'

We do not consider that the petitioner is entitled to mandamus and we shall undertake to give our views on the various questions presented by the petition for mandamus.

I. The petitioner questions the right of the court to hear the matter orally before the court contending that the matter of allowance for temporary alimony pendente lite should first be referred to the register to ascertain the facts through a reference. There is no merit in this contention. The court has the inherent power to hear evidence in all proceedings in the equity court. Often matters, not involving the principal equities involved, are referred to the register for a reference but this is for the convenience of the court and in order to facilitate the progress of the cause but not because the court has no right to hear the evidence. Mahone v. Williams, 39 Ala. 202, 225. Equity Rule 56, Code 1940, Tit. 7 Appendix, provides as follows: 'In all cases in equity the judge before whom the case is pending may at any time before final decree order that any or all of the witnesses shall be examined orally before him in open court or in chambers. * * *'

II. It is quite true that marriage is the essential foundation of allowances of alimony and suit money and the existence of that relation must be proved if not admitted. Where the relation of marriage is denied the measure of proof of the relationship in order to justify the awarding of alimony pendente lite is not required to be so conclusive as is requisite to establishing the fact of marriage on the main trial. It is ordinarily sufficient to support such award if the wife establish marriage by proof prima facie sufficient to show the existence of the relationship. Ex parte Jones, 172 Ala. 186, 55 So. 491. The petitioner in this case failed to testify or to produce any evidence that contradicts the findings of the court. The proof and the findings of the court have been set out. Obviously if the Winston County decree of divorce is void there is a marriage relationship between W. E. Gurganus and Lathia Gurganus. We so interpret the decree of the court for the purpose of the award of alimony pendente lite. It would be intolerable for an equity court to defeat a claim of alimony pendente lite in the face of a fraud of this kind. 'It would be unsafe and oppressive to allow a husband to obtain a decree of divorce from his wife without notice to her, or under circumstances brought about by his own acts, which deprived her of the opportunity to be heard, and then plead such decree in bar of her claim to alimony.' Golden v. Golden, 102 Ala. 353, 14 So. 638, 639.

See also Ex parte Smith, 34 Ala. 455; Ex parte McLendon, 239 Ala 564, 195 So. 733; Hooke v. Hooke, 247 Ala. 450, 25 So.2d 33. We think the proof of the marriage relationship was sufficient to sustain the award.

III. 'Pending a suit for divorce, the court may make an allowance for the support of the wife out of the estate of the husband, suitable to his estate and the condition in life of the parties for a period of time not longer than necessary for the prosecution of her bill for divorce.' § 30, Tit. 34, Code of 1940.

In the present case the court not only made a money allowance but gave Lathia Gurganus the right to occupy the house and lot which she and petitioner had occupied for many years as a home. The evidence in this case tends to show that W. E Gurganus left Lathia Gurganus at the time they were occupying the house and lot as a home. She supported herself by...