Jones v. Jones

• Decision Date: 01 March 1934
• Docket Number: 8 Div. 550.
• Parties: JONES v. JONES.
• Court: Alabama Supreme Court

153 So. 203

228 Ala. 178

JONES v. JONES.

8 Div. 550.

Supreme Court of Alabama

March 1, 1934

Appeal from Law and Equity Court, Lauderdale County; Orlan B. Hill Judge.

Bill for separate maintenance by Roxie Jones against Arnold Jones. From a decree overruling a demurrer to the bill, respondent appeals.

Reversed rendered, and remanded.

Bradshaw & Barnett, of Florence, for appellant.

A. A Williams, of Florence, for appellee.

KNIGHT Justice.

Bill in equity by Roxie Jones against her husband, Arnold Jones, for alimony in the nature of support money, but not for a divorce. Such cases have often come before this court, and we have uniformly held that, in view of the fact that the public in effect occupies the position of a third party in suits for separate maintenance, "mere legal niceties in regard to pleading should not interfere with the meritorious consideration of the cause." Tutwiler v Tutwiler, 205 Ala. 283, 87 So. 852, 853; Spafford v. Spafford, 199 Ala. 300, 74 So. 354, L. R. A. 1917D, 773; 30 C.J. p. 1086, § 891.

In her bill, complainant alleges that she and the respondent intermarried in Lauderdale county, Ala., on August 26, 1929; that on or about September 26th, same year, her husband abandoned her in a distant state, and left her among strangers and an object of charity; that thereafter the complainant and respondent returned to Alabama, where they both have since resided, but that her husband, the said Arnold Jones, "has continued his abandonment without just cause, and refuses to support or to contribute anything to the support of complainant."

One ground of respondent's demurrer takes the point that the bill fails to allege that the abandonment by the husband was without fault of the wife. It may be conceded that the bill could have been more illuminating on the question of the original abandonment, which occurred in a "distant state," yet it does aver that both spouses, after the abandonment, returned to Alabama, and that since their return the respondent has continued his abandonment of the complainant without just cause, and refuses to contribute in any way to her support.

No matter whether the original abandonment, so far as disclosed by the bill to the contrary, was justified by the conduct of the wife, it sufficiently appears that his continued abandonment was, and is, without just cause. Reading and construing the entire paragraph together, we are of the opinion that the bill as one for maintenance, not for divorce, is sufficient, and not subject to the stated ground of demurrer. Tutwiler v. Tutwiler, supra; Spafford v. Spafford, supra; Brindley v. Brindley, 121 Ala. 429, 25 So. 751. The courts will not permit the husband to escape from, or disregard, a clear duty owing alike to the wife, as well as to society, when the cause, which might have, in the first instance, absolved him from such duty, no longer exists. The stern morality of law forbids such conduct. Whenever the cause which justified the abandonment ceases to exist, it is the duty of the withdrawing spouse to resume his duties to the other. To hold otherwise would contravene the law of morality and society.

However the bill nowhere avers that the respondent is possessed of any property, or has any income. True, it is averred that "he is able to work, and does work, and that he is amply able to support complainant." In cases like the one now before us, we can only deal with the income of the husband. Bailes v. Bailes, 216 Ala....