Malone v. Malone

• Decision Date: 19 January 1931
• Docket Number: 28989
• Citation: 131 So. 870,159 Miss. 138
• Court: Mississippi Supreme Court
• Parties: MALONE v. MALONE

131 So. 870

159 Miss. 138

MALONE v. MALONE

No. 28989

Supreme Court of Mississippi

January 19, 1931

Division A

APPEAL from chancery court of Tippah county, HON. N. R. SLEDGE Chancellor.

Contempt proceedings by Mrs. Laura Malone against Bob Malone for failure to pay monthly installments allowed petitioner for support and maintenance pursuant to a separation decree. From the decree rendered, defendant appeals. Reversed, and cause remanded.

Reversed and remanded.

Fred B Smith, of Ripley, for appellant.

The chancery court has no authority to change, alter or modify the terms of a former decree except in accordance with the after arising circumstances of the parties.

Williams v. Williams, 127 Miss. 627, 90 So. 330; Schneider v. Schneider, 125 So. 91; Guess v. Smith, 100 Miss. 461, 56 So. 166; Clark v. Clark, 98 So. 157.

Chas. Lee Crum, of New Albany, for appellee.

The chancery courts of this state have the power to modify their former decree in matters of alimony granted where no divorce has been granted in the proceedings, on subsequently occurring facts, changed conditions of the parties, or one of them, or other matters arising subsequently to render the first decree inequitable or unfair to either party.

Section 159, Constitution of 1890; Garland v. Garland, 50 Miss. 694; Schneider v. Schneider, 125 So. 91; Section 1483, Hemingway's Code 1927.

Argued orally by Fred B. Smith, for appellant, and C. Lee Crum, for appellee.

OPINION

Cook, J.

In July, 1928, the appellant, Bob Malone, and the appellee, Mrs. Laura Malone, were married in Tippah county, Mississippi. At the time of this marriage, the appellant was a widower fifty-four years of age, and had several children. The appellee was near the same age as her husband, and had two children by a former marriage; this being her fourth matrimonial venture. After living together for only a few months, these parties separated, and the appellee filed a bill in the chancery court, charging that, without any reason or fault on her part, the appellant had refused to permit her to live with him, or in his home, and had refused to contribute anything to her support and maintenance, and praying for alimony pendente lite and for an allowance for the separate support and maintenance of herself and two minor children. The appellant answered the bill of complaint, denied the allegations thereof, and made his answer a cross-bill, praying for divorce on the ground of cruel and inhuman treatment. The appellee answered the cross-bill, and the cause proceeded to trial. During the trial, the appellant dismissed his cross-bill, and the cause proceeded upon the original bill and answer. Extensive proof was offered listing all the items of personal and real property owned by the appellant, the income derived therefrom, and the value thereof. As to the value of the appellant's property, there was a wide divergence in the testimony offered by the respective parties. Uncontroverted proof offered by the appellant showed that he was in very bad physical condition, and was wholly unable to do manual labor, and that for that reason his income and earning capacity were greatly diminished. Upon the proof the court granted the relief prayed for, and decreed that the appellant pay to the appellee, for her separate support and maintenance, the sum of thirty dollars per month, and one hundred twenty-five dollars as attorney's fees for conducting the suit, and the costs of court, for the payment of all of which a lien was fixed upon the appellant's real estate.

Thereafter the appellant paid the attorney's fees and court costs required of him, but, after having paid to the appellee several of the monthly installments allowed by the decree of the court for her support and maintenance, he defaulted in the payment thereof, and, when he had become in arrears for such payments to the extent of about one hundred dollars, the appellee filed a petition, setting forth in detail the history of the prior proceedings between herself and her husband, and averring, among other things, that the defendant, appellant herein, "is financially able to pay said installments, and was able at the time, but defaulted paying the same, and that his failure to make said payments is due to his sullen, antagonistic, and contemptuous regard for the order and decree of the court decreeing said payments, and that by his failure and refusal to make such payments, the defendant is in contempt of this court."

The petition prayed that citation be issued requiring the defendant to show cause why he should not be adjudged in contempt of court for his failure and refusal to make payments in accordance with the former decree of the court that the allowance for...