McWilliams v. McWilliams

• Citation: 216 Ala. 16,112 So. 318
• Decision Date: 31 March 1927
• Docket Number: 1 Div. 428
• Parties: McWILLIAMS v. McWILLIAMS.
• Court: Supreme Court of Alabama

112 So. 318

216 Ala. 16

McWILLIAMS v. McWILLIAMS.

1 Div. 428

Supreme Court of Alabama

March 31, 1927

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Bill for divorce and alimony by Lucile McWilliams against John W McWilliams. From the decree, both parties appeal. Corrected and affirmed on direct appeal; affirmed on cross-appeal.

Stevens McCorvey, McLeod, Goode & Turner, of Mobile, for appellant.

Smiths Young & Johnston, of Mobile, for appellee.

SAYRE J.

Appellee (Lucile McWilliams) procured a decree of divorce from bed and board. Both parties appeal, and the sole question now between them relates to the alimony awarded to appellee by the decree of the trial court. Appellant thinks the allowance is excessive; appellee contends that the allowance should be in solido, and, in any event, that the yearly allowance decreed by the court is inadequate.

Without unnecessarily denying the power of the court to award an allowance in solido to the wife in a case in which she procures a divorce from bed and board, the court here is of opinion that the decree denying such an award in the case presented by the record is proper. By her application to the court (section 7423 of the Code) setting forth the fact that she desired only a divorce from bed and board, appellee avoided the effect of section 7431, which is that a wife divorced a vinculo cannot under any circumstances claim dower at the death of her husband or distributive share in his personal estate. McLaughlin v. McLaughlin, 202 Ala. 16, 79 So. 354; Chamboredon v. Fayet, 176 Ala. 217, 57 So. 845; 2 Schouler, Dom.Rel. (6th Ed.) § 1943. By the same token she also reserved to herself whatever benefit may hereafter accrue to her under the laws of Florida to which state appellant has removed his residence--more liberal to the widow than the law of this state--in the event her husband shall die first. A decree of divorce from bed and board does not remove the vinculum of marriage. Ellison v. Mayor, 53 Ala. 558; Smith v. Smith, 45 Ala. 264. Such a divorce is only a legal separation; the marriage continuing in regard to everything not necessarily withdrawn from its operation by the decree. 2 Schouler, § 1938; Taylor v. Taylor, 93 N.C. 418, 53 Am.Rep. 460. However, there is no occasion to deny that circumstances may justify a departure from the general rule--which, even in cases of absolute divorce, is to award alimony by an annual allowance payable at convenient intervals, as where property has been accumulated by the joint efforts of the husband and wife. 19 C.J. 261. In a case of that sort it would be peculiarly appropriate to give the wife her just share of the estate. But that is not this case. Some cases refer to the fact that a divorce a vinculo restores the parties to the status of unmarried persons, and that, there being no children (the case here), the lives of the parties will diverge, as reasons why the award to the wife should be a sum in gross; but here the decree from bed and board contemplates a reconciliation and reunion of the parties. The statute law of this state relating to this subject has been placed upon a very different basis since the decisions in Lovett v. Lovett, 11 Ala. 763, and Quarles v. Quarles, 19 Ala. 363, decided in 1847 and 1851, respectively, and referred to in this connection. This is noted in Jeter v. Jeter (1860) 36 Ala. 391, where reference is made to sections 1971 and 1972 of the Code of 1852, embodying substantially the provisions now found in sections 7418 and 7419 of the Code of 1923.

Section 7424 of the present Code (1923) authorizes the court, in case of a divorce from bed and board, "to make an allowance to the wife out of the estate of the husband." And so, in case of divorce a vinculo, the language of the statute (section 7418 of the Code) is that the court (judge) "must decree the wife an allowance out of the estate of the husband"; but it has never been supposed that this required a division of property between the husband and wife. All our adjudications in cases of absolute divorce have involved, necessarily, a different interpretation of the statute. In cases of divorce from bed and board there is even less reason for supposing that the Legislature intended a division of property as matter of right between husband and wife. The court committed no error in the general method of its dealing with the case.

Proceeding then to a discussion more in detail of the difference between these parties, we observe that appellant, the husband, has removed to Florida, taking with him substantially all of his business interests, and the argument for an allowance in gross proceeds largely upon the idea that he will probably resort to whatever means may be in his power to avoid regular payments as decreed by the court, with result that the relief awarded cannot be enforced without continuous litigation unless appellant be required to give bond to perform the decree. We are unable to say that appellant's purpose in removing to Florida, or any substantial part of it, was to put obstacles in way of complainant's relief, as appellee asserts. The larger opportunities for money making in appellant's line of business, demonstrated by his great, perhaps we may say phenomenal, success, seem sufficient to account for his removal. Nor do we feel any great confidence in the proposition that, if appellant shall be inclined to interpose unreasonable obstacles to the enforcement of the decree, he will be much more advantageously circumstanced in Florida than in Alabama. McAlister v. McAlister, 214 Ala. 345, 107 So. 843, is cited as going to show how it may be in the power of appellant to impede appellee's remedy for the collection of her allowance in Florida. But consideration of what was decided in that case will show that, as long as appellant shall have an estate out of which payment may be coerced, the remedy against him may be as effectually pursued in that state as in this. At least, it is hard to see how he may profitably deny liability for accrued installments. The jurisdiction of the trial court and of this court in this case is conclusively as matter of fact settled by the record, since appellant will scarcely deny in Florida or elsewhere that he has taken part in this proceeding both as party and as witness. Wise v. Miller (Ala.Sup.) 111 So. 913. The decree may be modified; but we do not see what answer appellant could have to an action of debt brought to recover installments overdue on the allowance made by the court in this state. Schouler, Dom.Rel. § 1862, citing Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A. (N.S.) 1068, 20 Ann.Cas. 1061. The decree for alimony, so far at least as concerns past-due installments, is none the less a final decree because it may be modified by the court which rendered it. "Authorities are abundant which hold that such a decree, for a fixed sum, is a judgment of record, and will be received by other courts as such. And such a decree rendered in any state of the United States will be carried into judgment in any other state." Wells v. Wells, 209 Mass. 282, 95 N.E. 845, 35 L.R.A. (N.S.) 561; 35 L.R.A. (N.S.) 661; Page v. Page, 189 Mass. 85, 75 N.E. 92, 4 Ann.Cas. 296. And a decree of modification, if appellant's future course should make such decree necessary or equitable, of which appellant had notice in the original suit (to which a petition for such modification would be a mere incident), may be had, it seems, without further service, though the court in such case would take care that proper steps be taken to give him knowledge of the proceeding. Wells v. Wells, supra, where adjudications and textbooks of high authority are cited. We do not intend to be understood as denying that the situation thus presented may involve some difficulty in case appellant shall prove recalcitrant and elect to harass appellee by unnecessary, expensive, and, we must presume, unsuccessful litigation; but, on the other hand, that emergency may be met when it arises, and we must deal with the case now on the postulate of a possible reconciliation--this because appellee, after oscillating between the reliefs possible on the averments of her bill, as amendments of her bill show, elected in the end to pray for a decree from bed and board only, and the purpose of the decree is to provide suitable maintenance for the wife in the meantime, not unnecessarily to penalize the husband. Murray v. Murray, 84 Ala. 365, 4 So. 239. The case just referred to was a case in which the complainant sought alimony without divorce; but it does not materially differ from the present case in which complainant has sought and accepted relief by legal separation, with alimony, but without divorce. Upon the whole case the court is of opinion that the decree under review properly awarded an allowance (alimony) payable in monthly installments. Nor do we see how in the present situation of the parties an alternative decree may be rendered which would require appellant, in lieu of an award in gross, to make bond to secure payment of future installments during the separation of the parties or the life of appellee; that being the recourse suggested by appellee. Appellant having removed to Florida with all his belongings, appellee can have no remedy by a decree of the courts of this state which would provide for bond, receivership, sequestration, or what not of that character; such proceedings being in the nature of execution, and not of decree, and so without extraterritorial effect. Lynde v. Lynde, 181 U.S. 187, 21 S.Ct. 555, 45 L.Ed. 810. As stated in the outset, both parties are dissatisfied with the amount of the allowance, and both have appealed. The register reported that appellant--we thus refer to the husband--has an estate,...