Ex parte Thornton

• Citation: 272 Ala. 4,127 So.2d 598
• Decision Date: 02 March 1961
• Docket Number: 6 Div. 338
• Parties: Ex parte Gartis G. THORNTON. Bertha Loden THORNTON v. Gartis G. THORNTON.
• Court: Supreme Court of Alabama

Page 598

127 So.2d 598

272 Ala. 4

Ex parte Gartis G. THORNTON.

Bertha Loden THORNTON v. Gartis G. THORNTON.

6 Div. 338.

Supreme Court of Alabama.

March 2, 1961.

E. B. Haltom, Jr., Florence, for petitioner.

Knabe & Nachman, Montgomery, for Bertha Loden Thornton.

COLEMAN, Justice.

This is a petition for certiorari to review and set aside a decree of the circuit court, in equity, holding the petitioner guilty of contempt for failure to obey a decree of the equity court rendered June 2, 1947.

On May 9, 1947, Bertha Loden Thornton, as complainant, commenced Case No. 2134 in the Circuit Court of Marion County, in Equity, by filing a bill of complaint against her husband, the petitioner, as respondent. The bill alleges that the complainant and respondent were married to each other December 25, 1940, and lived together as husband and wife until October 1, 1946, when they separated; that respondent has committed acts of violence on the person of complainant, has assaulted and beat her, and that there was danger to her health on account of said assault; that the parties have two children who are in the custody of complainant; that since the separation of the parties, respondent has failed and refused to support complainant and the children; that respondent is employed, is receiving a wage of approximately $500 per month, and is well able to pay 'both temporary and permanent alimony to this complainant, and a reasonable sum both temporary and permanent for the support of said children,' and a fee for complainant's solicitor.

The prayer for relief is:

'* * * that the said defendant be required to pay a reasonable sum during the pendency of this cause for the support of this complainant; that he likewise be required by pay a reasonable sum during the pendency of this cause for the support of the said children; that permanent alimony for the support of herself and reasonable allowance for the permanent support of said children be required to be paid by the defendant by final decree of this Court; that the complainant be awarded the permanent custody and control of said children;

'(b) That defendant be required to pay a reasonable sum as temporary solicitors fees and a reasonable sum as solicitors fee for the complete prosecution of this cause;

'(c) That all the testimony in this case be taken orally before the Court;

'(d) That this cause be set down for hearing by the Court to ascertain and fix such sum or sums as may be reasonable and proper to be paid this complainant for temporary alimony, support for said children and solicitors fees, pending this litigation;

'(e) And complainant prays for general relief.'

There is no prayer for divorce.

Respondent was served with summons and a copy of the bill of complaint on the day it was filed.

On June 2, 1947, the court rendered the following decree:

'This cause coming on to be heard upon the application of the complainant for temporary alimony and temporary solicitors fee; and comes the complainant and it appearing to the court that the defendant has been notified of this hearing in accordance with the terms of the decree rendered on the 22nd day of May, 1947, and defendant being called, comes not but makes default.

'Whereupon, the court proceeds to hear the testimony offered by the complainant; and, upon consideration thereof, it is ordered, adjudged and decreed:

'That the defendant shall, pending final hearing in this cause, pay to the register of this court the sum of $120.00 within ten days from this date, and a like sum shall be so paid on the first day of July, 1947, and the first day of each subsequent month, as alimony for the complainant; and that within ten days from this date the said defendant shall pay to the register the sum of $100.00 as temporary solicitors fee to be paid the complainant's solicitors, * * *

'Upon defendant's failure to comply with the terms of this decree, the register of this court shall forthwith make report thereof to this court, for further appropriate action.'

On November 26, 1957, the court entered an order for arrest of respondent. The order recites that on October 30, 1947, respondent was adjudged in contempt for failure to comply with the decree of June 2, 1947, and orders that respondent be committed to jail until he complies with the decree of June 2, 1947. On motion of respondent, the arrest order of November 26, 1957, was quashed.

On December 28, 1957, complainant filed petition for a rule to require respondent to show cause why he should not be adjudged in contempt for failure to comply with the decree of June 2, 1947. The petition recites that respondent is entitled to credit of $1,800 paid for him by his father towards support of complainant and the children. The petition recites that respondent has threatened to leave the State and prays for writ of ne exeat to restrain him. By amendment to the petition, complainant further prays that respondent be required to support the children and to pay solicitor's fee.

After hearing, the court, on March 6, 1958, adjudged respondent to be in contempt for failure to comply with the decree of June 2, 1947, and in arrears in the sum of $11,887. Complainant was committed to jail, to be held until he should purge himself of contempt by complying with the decree. The decree further ordered respondent to pay $100 per month for support of the children. Motion of respondent for rehearing was overruled. By petition for certiorari, the respondent seeks reversal of that portion of the decree which holds him in contempt. All the foregoing proceedings were had in Case No. 2134.

Respondent's defense is based on the proceedings and decree in Case No. 2209 in the same court. Case No. 2209 was commenced by bill of complaint filed by complainant against respondent December 31, 1947. The bill alleges that complainant is now and has been for more than one year next preceding the filing of the bill a resident citizen of Marion County, that respondent has left the State and his residence is unknown and cannot be ascertained, that complainant and respondent were married to each other December 25, 1940, and lived together until October 1, 1946. The bill charges respondent with abandonment for more than twelve months, and avers that the parties have the two children already mentioned who are in custody of complainant. The bill prays for custody of the children and for divorce. There is no prayer for alimony of any sort.

Service was had by publication. Decree pro confesso was rendered against respondent. Testimony was taken. Final decree was rendered in Case No. 2209 on April 29, 1948. That decree dissolved the bonds of matrimony between complainant and respondent awarded custody of the children to complainant, and prohibited respondent from again contracting marriage until further order of the court. No alimony was awarded.

Respondent contends that the decree is Case No. 2209 terminated the right of the complainant to alimony under the decree in Case No. 2134 as to installments becoming due after April 29, 1948, the date of the decree in Case No. 2209.

The decree of June 2, 1947, by its terms, is a decree for 'alimony,' to be paid 'pending final hearing in this cause.' The bill does not pray for and the decree does not grant a divorce of any sort. The decree requires respondent to pay monthly a sum certain 'as alimony for the complainant.' Whether the allowance was made under § 30, Title 34, Code 1940, which the wife says is not the case, or under the jurisdiction of the equity court independent of the statute, the allowance is an allowance pendente lite. The bill did not pray for divorce and any final award under the bill would necessarily be an allowance for separate maintenance.

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