Lang v. Lang

• Decision Date: 23 January 1912
• Citation: 73 S.E. 716,70 W.Va. 205
• Parties: LANG v. LANG et al.
• Court: West Virginia Supreme Court

73 S.E. 716

70 W.Va. 205

LANG v. LANG et al.

Supreme Court of Appeals of West Virginia.

January 23, 1912

Submitted June 6, 1910.

Syllabus by the Court.

A court of equity, independently of proceedings for divorce, on the ground of inadequate remedy at law, may decree maintenance to a wife who has been deserted by her husband.

The venue of a suit for maintenance without divorce is not governed by the divorce statutes, but by the laws relating to place of suit for the vindication of ordinary legal or equitable rights.

Appeal from Circuit Court, Harrison County.

Bill by Susan C. Lang against George W. Lang and others for alimony. Decree for defendants, and complainant appeals. Reversed and remanded.

F. E Parrack and E. G. Smith, for appellant.

John Bassel and Philip P. Steptoe, for appellee Lee J. Lang.

ROBINSON J.

May a court of equity, independently of proceedings for divorce decree alimony or maintenance to a wife who has been deserted by her husband? The appeal in the case before us concretely presents this question. The bill is brought by a wife whose husband deserted her to live with another woman. The wife seeks alimony or maintenance, but no divorce, from the husband. The court below held that equity would not entertain such case. The bill was dismissed on demurrer.

In Chapman v. Parsons, 66 W.Va. 308, 66 S.E. 461, 24 L.R.A. (N. S.) 1015, 135 Am.St.Rep. 1033, we noticed the question now presented, but reserved answer thereto. Now that it is squarely before us, we must answer the same in the light of reason and authority.

We hold that equity has jurisdiction to decree alimony or maintenance to a wife, independently of our divorce statutes. Out of the great contrariety of opinion on the point, we choose that which seems best to accord with reason and justice. Indeed we adopt the view which is now recognized by the current of authority in the United States, whatever may be said in some of the older encyclopedias and text-books. An extended critical examination of the subject convinces us that the courts of this country have so rapidly accepted the view which we now approve that the weight of authority is in its favor, though only a few years ago the writers generally announced that the weight was the other way.

A most recent work, collecting all the adjudicated cases on the subject and announcing a text therefrom, says: "In the United States it is maintained, by much authority, that in the absence of legislation to the contrary, alimony should not be allowed in an independent suit in courts of equity. The proper remedy, at common law, where the husband deserted his wife and refused to supply her with necessaries according to her rank and condition, was an action at law by the person supplying such necessaries for her. But in many of the states alimony may be decreed independently of any proceeding for separation or divorce where the husband refuses to support his wife, or where she has separated from him, on the ground that in the absence of adequate relief or remedy at law, equity will interfere; and in other states where the rule was formerly that an independent action would not lie, it is now held that such an action will lie although no statute authorizes it. The inherent right of equity to entertain an action for alimony apart from any proceeding for divorce is not taken away by a statute authorizing the granting of alimony in an action for divorce, or by a statute making it a misdemeanor for a person willfully to neglect to provide support for his wife." 3 Enc. L. & P. 65. Then, showing that the trend of legislation has followed the reason and justice of a suit for maintenance without divorce, the same text proceeds: "In nearly all the states where the authority of courts to award alimony independently of divorce was denied at common law, statutes now exist authorizing an independent action for alimony, with limitations in some instances; and in several jurisdictions where the common-law authority of equity courts to award alimony without divorce is recognized, statutes now exist which are declaratory of the common law. In other states where the common-law authority to award alimony without divorce has not been passed upon, statutes now exist authorizing the awarding of alimony in an independent action."

It is not our purpose in this opinion to treat of the subject in an original manner. Indeed we could not do so more ably than has been done by many courts and eminent text writers. That which we should say in justification of a well grounded jurisdiction in equity for alimony without divorce would only be repetition of what has been written time and again. That equity has such jurisdiction because of the want of an adequate remedy at law, we are satisfied. That the recognition of such jurisdiction has met the approval of most eminent minds, there can be no doubt. That the reasons for such recognition are sound, is made clear by a reading of the authorities. 2 Nelson on Divorce and Separation, §§ 1000-1003; 2 Story, Equity Jurisprudence, § 1423a. Some of the older cases are: Glover v. Glover, 16 Ala. 440; Galland v. Galland, 38 Cal. 265; Butler v. Butler, 4 Litt. (Ky.) 202; Garland v. Garland, 50 Miss. 694; Earle v. Earle, 27 Neb. 277, 43 N.W. 118, 20 Am.St.Rep. 667. The doctrine finds favor in new jurisdictions, by interesting opinions in the following: Bueter v. Bueter, 1 S. D. 94, 45 N.W. 208, 8 L.R.A. 562; Bauer v. Bauer, 2 N. D. 108, 49 N.W. 418; Kimble v. Kimble, 17 Wash. 75, 49 P. 216; Edgerton v. Edgerton, 12 Mont. 122, 29 P. 966, 16 L.R.A. 94, 33 Am.St.Rep. 557; Dole v. Gear, 14 Hawaii 554. For collections of the cases generally, see: 3 Enc. L. & P. 66; 2 Amer. & Eng. Enc. Law, 94; 14 Cyc. 744.

"The broad ground upon which these authorities rest is, that it is the duty of the husband to support the wife, and if, without fault upon her part, he refuses to do so, the courts will compel him to render her a reasonable support in accordance with his means, even though the wife does not seek or wish a legal separation dissolving the bonds of matrimony, and that an action for this purpose may be maintained, because of the inadequacy of ordinary legal remedies to enforce this duty. Again, the policy of the courts is to discourage, rather than encourage, divorces. The wife may be entitled to a divorce but whether or not she will exercise that right is optional with her, and to hold that unless she did she could not maintain an action for support would be both unreasonable and...