Marsh v. Marsh

• Decision Date: 19 February 1904
• Docket Number: 20,256
• Citation: 70 N.E. 154,162 Ind. 210
• Parties: Marsh v. Marsh
• Court: Indiana Supreme Court

70 N.E. 154

162 Ind. 210

Marsh v. Marsh

No. 20,256

Supreme Court of Indiana

February 19, 1904

From Wells Circuit Court; E. C. Vaughn, Judge.

Contempt proceeding by Bessie Marsh against Fred Marsh. From a judgment dismissing the proceeding, plaintiff appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Affirmed.

Levi Mock, John Mock, and George Mock, for appellant.

J. S Dailey, Abram Simmons and F. C. Dailey, for appellee.

OPINION

Gillett, C. J.

In connection with a decree of divorce, rendered in favor of appellant against appellee, it was ordered that appellee pay into the office of the clerk of said county, for the support of appellant, the sum of $ 4 each week from March 1, 1902 until the further order of court. September 9, 1902, on the application of appellant, appellee was cited for contempt for a failure to obey said order. On his motion the court struck out said application.

Section 1059 Burns 1901 provides: "The decree for alimony to the wife shall be for a sum in gross, and not for annual payments; but the court, in its discretion, may give a reasonable time for the payment thereof, by instalments, on sufficient surety being given."

In Miller v. Clark, 23 Ind. 370, there is pointed out the fact of the reversal of the legislative policy in substituting for divorce a mensa et thoro, with its incidental provision for the maintenance of the wife during the separation, a provision for an absolute divorce a vinculo matrimonii, and the payment of a fixed sum to the wife, in bar of any future claim for her support. "The allowance so authorized," said the court in the above case, "is named alimony in the statute; but it is not the alimony of the common law, the right to which ceased to exist or reverted to the husband on the death of the wife, resulting from the fact that the marriage relation continued to exist until her death. But it is alimony under, and the creature of, the statute, given upon an equitable settlement between the parties upon the dissolution of the marriage, and of all the relations of husband and wife theretofore existing between them."

In providing that that portion of the decree in divorce cases relative to the provisions for the wife shall not be for annual payments, it was evidently the purpose of the legislature to prohibit all indefinite allowances for her support, and to require the court to confine its allowance to her to a fixed sum, on the theory that thenceforth the parties were to be strangers to each other. It is clear that the order...