Hopper v. Hopper
| Decision Date | 10 October 1938 |
| Docket Number | 33345 |
| Citation | 183 Miss. 621,183 So. 504 |
| Court | Mississippi Supreme Court |
| Parties | HOPPER v. HOPPER |
APPEAL from the chancery court of Lauderdale county HON. A. B. AMIS SR., Chancellor.
Suit for divorce and alimony or for separate maintenance and attorney's fee by Evie Smith Hopper against W. L. Hopper. From a decree granting separate maintenance and attorney's fee, the defendant appeals. On petition of plaintiff for allowance of alimony pending appeal and for counsel fees in The Supreme Court. Petition granted.
Petition granted.
H. W Davidson and Williamson, Riddell & Riddell, all of Meridian, for appellee on petition.
See Section 1420 of the Mississippi Code of 1930 as touching the power of a Chancery Court to require the husband to contribute to the support of wife in urgent and necessitous cases, even in vacation. This power, it seems, to award suit money and support is inherent in a court of chancery and when the case is appealed to the Supreme Court it seems it is incident to the power of the Supreme Court.
Hall v. Hall, 27 So. 636; Everett v. Everett, 80 So. 647, 81 So. 417; 19 C. J., page 209, sec. 507, and page 281, sec. 643 (2).
We respectfully submit that this appellate court has the inherent power to award suit money as per the motion of appellee in this case, including both counsel fees and necessary maintenance for the appellee pending the appeal.
Appellant argues that the purported release settled all claims for support, and attorney's fees. The court below adjudicated the question against appellant, and held that said purported release was obtained improperly from appellee. The determination as to whether the court below decided this issue incorrectly according to law is a question to be determined on the appeal of this case on the merits.
De Armond v. Fine, 111 Miss. 737, 72 So. 145; Jones v. Coker, 53 Miss. 195.
A husband and wife may not enter into an agreement in proceedings already commenced or about to be instituted with respect to alimony, conditioned upon the granting of a divorce or facilitating it, because a contract intended to promote a dissolution of marriage is contrary to public policy.
F. K. Ethridge and Gilbert & Cameron, all of Meridian, for appellant.
An agreement as to alimony, where provision has been made by the husband for the wife upon his separation from her, either by separation agreement or by voluntary settlement, the wife is not entitled to temporary alimony, at least unless she returns or offers to return what she has received, when that is possible, or shows that the amount provided for in the agreement is not sufficient for her needs.
There is nothing in the record to show that the appellant had any notice from the appellee to the effect that she did not intend to stand by the previous agreement and contract of release and practically had lulled the appellant into a sense of security and at least prevented the appellant from filing an answer and bringing this contract to the attention of the court, as this conduct of the appellee was tantamount to fraud on the jurisdiction of the court.
Moss v. Moss, 123 Miss. 812; Plummer v. Plummer, 37 Miss. 185; Harper v. Barnett, 16 So. 553; Guardian v. McGehee, 54 Miss. 621.
We most earnestly insist that this contract is a full and complete settlement and discharge of the appellant from all obligations by reason of the marriage and that it served as a defense to the appellant in this present motion and will be so considered by the court on the hearing of the merits of this cause.
The court has before it on this motion certain affidavits of three parties touching the unlawful conduct of the appellee and we particularly call the court's attention to the fact that appellant, so notorious has been the conduct of the appellee, has presented the affidavit of the father of the appellee to this court and we can only add that this situation must be regarded by the parent as one demanding the attention of the court in order that complete and full justice may be done by the parties.
The testimony furnished by these affidavits touching the conduct of the appellee is shown by the record not to have been known to the appellant and constitutes a now known change in the condition of the appellee as from the known conditions obtaining at the time of the rendition of this decree and under the authorities the same is sufficient to cause a discontinuance of the allowance heretofore made by the court when called to the attention of the lower court in the proper procedure; we insist, however, that the appellant is entitled to have that rule applied in this court while an appeal is pending, for an allowance to which exception has been duly noted.
Amis on Divorce and Separation, page 257; Schlom v. Schlom, 149 Miss. 111; 1 R. C. L. 949, sec. 95; 19 C. J. 277, 628; Redmond v. Broadus, 153 Miss. 889, 122 So. 194.
Appellee sued for a divorce and alimony; and asked in the alternative for separate maintenance and an attorney's fee. Process was duly served on the appellant as defendant, but when ...
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