Ortman v. Ortman

• Decision Date: 15 May 1919
• Docket Number: 1 Div. 97
• Parties: ORTMAN v. ORTMAN.
• Court: Alabama Supreme Court

82 So. 417

203 Ala. 167

ORTMAN v. ORTMAN.

1 Div. 97

Supreme Court of Alabama

May 15, 1919

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

Suit for divorce by Anna F. Ortman against Emile Ortman. From the decree, allowing alimony pendente lite in the sum of $663 and permanently in the sum of $58.25 per month, defendant appeals. Affirmed.

It appeared from the evidence that the respondent was in the drug business, but just what the business was worth or paid in was not disclosed. It further appeared that during the years of their married life respondent contributed $100 per month towards household expenses and paid the other bills amounting as estimated to about $50 per month additional to the household expenses. It appeared that since the separation the respondent paid for a while the sum of $50, and later reduced it to $40 per month, and that this went to the support for the two children. It further appeared that the complainant was in possession of the two houses, from which she had an annual income of $502.99; that her brother contributed the sum of $50 per month to her support; that her daughter was in Columbia University, and had two more years there; that complainant's brother bore most of this expense; and that the son was at work and self-sustaining. The chancellor concluded that complainant had an income of $91.75 per month, and required respondent to pay the difference between that sum and $150 per month.

Gordon & Edington, of Mobile, for appellant.

Smiths Young & Leigh, of Mobile, for appellee.

THOMAS J.

The question on which the decree of the court is challenged is the amount allowed to the wife pendente lite and as permanent alimony.

The complainant testified she had no knowledge of the extent of her husband's business or the amount of his earnings that they had lived together in a state of matrimony for about 19 years prior to their separation in February, 1916; that during this time he had contributed $150 a month to the support of his family and, in addition, paid certain sums for clothing, dental bills, and the like; that $125 was the smallest sum on which she could sustain herself in the sphere of life her husband had maintained her; and that the net income from her properties was $41.75 a month, or an aggregate of $501 a year. By the contribution of the husband in the amount and for the long term indicated, he fixed a standard or "condition" in life for his family that is not successfully contradicted or overturned in this proceeding; nor does it appear that such "condition" of his family was inconsistent with their former station or condition in life and was unnecessary to their maintenance at the time of the rendition of the decree. A man owes a duty of such maintenance to his family as well as to the state; not only that he keep them from becoming a charge upon the body politic (Munn v. Illinois, 94 U.S. 113, 124, 24 L.Ed. 77; Williams v. Village of Port Chester, 72 App.Div. 505, 76 N.Y.Supp. 631, 634), but properly to maintain them, having regard for their established condition in life and the circumstances materially affecting their lives and pursuit of happiness as citizens. That is, to support them to the best of his ability in the condition to which they (with him) have been accustomed.

Allowances to the wife pending a suit for divorce and decree for alimony are of several classes: (1) The statutory allowance for maintenance to the wife pending the suit for divorce "out of the estate of the husband, suitable to his estate and the condition in life of the parties," and secured to the wife as a matter of right. Code 1907, § 3803; Coleman v. Coleman, 73 So. 473, 475. (2) The allowance for maintenance of the wife by alimony after separation when no divorce has been granted, being independent of statute and granted under the original jurisdiction of the chancery court. Glover v. Glover, 16 Ala. 440, 443-445; Johnson v. Johnson, 190 Ala. 527, 67 So. 400; Murray v. Murray, 84 Ala. 363, 365, 4 So. 239; Lang v. Lang, 70 W.Va. 205, 73 S.E. 716, 38 L.R.A. (N.S.) 950 et seq., Ann.Cas.1913D, 1129. Such decrees may be kept within the control of the court, so that subsequent changes or orders may be made by the court as may be just and necessary under any changed circumstances of the parties or of their properties. Johnson v. Johnson, 195 Ala. 641, 643, 71 So. 415; Folda v. Folda, 174 Ala. 286, 288, 56 So. 533; Jones v. Jones, 174 Ala. 461, 464, 57 So. 376; Clisby v. Clisby, 160 Ala. 572, 576, 49 So. 445, 135 Am.St.Rep. 110. (3) The allowance to the wife on decree of divorce, made by statute, "out of the estate of the husband, taking into consideration the value thereof [the respective estates of the two parties] and the condition of his family" (Code 1907, § 3804); and where the divorce is in favor of the wife for the misconduct of the husband the allowance is required to be "as liberal as the estate of the husband will permit, regard being had to the condition of his family and to all the circumstances of the case" (Code, § 3805). It has been held that decrees for permanent alimony after divorce may be made payable in installments, according to the justice of the case and the circumstances of the parties at interest, and may also be kept open and within the control of the court for any necessary changes therein which the circumstances or necessities of the parties' personal and property relations may demand or dictate. Williams, Adm'x, v. Hale, 71 Ala. 83, 87; Edwards v. Edwards, 84 Ala. 361, 363, 3 So. 896; Jones v. Jones, 131 Ala. 443, 445, 447, 31 So. 91; Tolman v. Leonard, 6 App.D.C. 224, 233; 2 Bish.Mar. & Div. §§ 429, 436, et seq.; 14 Cyc. 785, 786.

For general authorities on the necessity and right to modify such a decree, to make provision for the support of children when no such provision was contained in the original decree, see Spain v. Spain, 177 Iowa, 249, 158 N.W. 529, L.R.A.1917D, 319, Ann.Cas.1918E, 1225; to meet necessities of the case arising from the subsequent conduct of the parties, Weber v. Weber, 153 Wis. 132, 140 N.W. 1052, 45 L.R.A. (N.S.) 875, Ann.Cas.1914D, 593; the subsequent marriage of the wife, Staton v. Staton, 164 Ky. 688, 176 S.W. 21, L.R.A.1915F, 820, 824; the subsequent marriage of the husband, not affecting the original decree, State ex rel. Brown v. Brown, 31 Wash. 397, 72 P. 86, 62 L.R.A. 974; because of changed conditions of the person or property of the parties, Van Gordor v. Van Gordor, 54 Colo. 57, 129 P. 226, 44 L.R.A. (N.S.) 998. The authorities are collected to the contrary in Ruge v. Ruge, L.R.A.1917F, 721, 729, note; Alexander v. Alexander, 13 App.D.C. 334, 45 L.R.A. 806, 813.

The case of Smith v. Smith, 45 Ala. 264, 267, 268, is cited as being opposed to the foregoing authorities by our court and as indicating errors in the instant decree for permanent alimony. In that case the husband was divorced from the wife in 1856 on the ground of her adultery. Thereafter Mrs. Smith filed a bill to set aside the former decree for fraud by the husband in its procurement; and, so far as Mrs. Smith's bill sought to open the former decree, it was dismissed (in 1859), but on her plea for permanent alimony the court rendered a decree in her favor against her late husband "for one hundred dollars per annum as permanent alimony, commencing 1st January, 1860, payable at the end of the year, and at the end of each year thereafter." No part of this allowance being paid, Mrs. Smith had executions issued and levied on Mr. Smith's property in 1866. An injunction was sought by him to restrain the collection by executions of the amounts indicated in the decree allowing alimony to Mrs. Smith. The equity of the bill for injunction depended upon the character of the decree allowing alimony. Mr. Justice Peters observed, if "this decree was absolute, then the bill was was without equity, and the decree could not be afterwards suspended or altered"; and further said:

"The right, then, to an allowance in favor of the wife, upon a final dissolution of the marriage, depends on our statute. The statute in force at the date of the divorce and the allowance of what is called alimony in the decree in this case was in the following words, to wit: 'If the wife has no separate estate, or if it be insufficient for her maintenance, the chancellor, upon granting a divorce, must decree the wife an allowance out of the estate of the husband, taking into consideration the value thereof, and the condition of his family.' Code, § 1971; Rev.Code, § 2361. This 'allowance' to the wife is

not, in fact, alimony, in the sense of the ecclesiastical law of England; but it is more strictly an arrangement in lieu of a division of the estate of the parties, so as to return to the wife her just portion of that property which mutually belonged to both during the marriage, and which the labor and care of both may have equally contributed to procure and preserve. This allowance was intended to supply the wife with the means of commencing life anew. *** Such purpose could best be accomplished by making such allowance absolute and permanent. *** The form and manner of granting the allowance in this case cannot now be inquired into or altered. *** That the allowance was a sum certain, to be paid from year to year, does not change the character of the decree. This, in a decree for divorce from bed and board, is such a decree as may be subsequently modified. Shef.Mar. & Div. p. 596, and cases there cited. But this is not such a case."

This view is not in harmony with our subsequent decisions. In Edwards v. Edwards, supra (84 Ala. 362, 363, 3 So. 897), Mr. Chief Justice Stone said:

"That part of the decree which relates to what is called permanent alimony, we leave as the chancellor fixed it,

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