Phillips v. Phillips

• Decision Date: 29 May 1930
• Docket Number: 7 Div. 946.
• Citation: 129 So. 3,221 Ala. 455
• Parties: PHILLIPS v. PHILLIPS.
• Court: Alabama Supreme Court

129 So. 3

221 Ala. 455

PHILLIPS v. PHILLIPS.

7 Div. 946.

Supreme Court of Alabama

May 29, 1930

Opinion Extended June 26, 1930.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Bill for divorce and alimony by Gipsie Carnes Phillips against W C. Phillips, with a cross-bill by respondent. From a decree for complainant, respondent appeals. Corrected in part, and remanded.

See Phillips v. Ashworth (Ala. Sup.) 124 So. 519.

Inzer Inzer & Davis, of Gadsden, for appellant.

Goodhue & Lusk, of Gadsden, for appellee.

THOMAS J.

The appeal is from a decree granting divorce and awarding permanent alimony, temporary alimony pending appeal attorneys' fees, and vesting in appellee certain personal property.

The appellee abandoned appellant on May 5, 9, or 10, 1929, on the grounds of alleged adultery and habitual drunkenness, and appellant denied such facts, and alleged that, if they be true, appellee had condoned such alleged adulterous acts or had connived therein or therewith. Section 7413, Code; Smedley v. Smedley, 30 Ala. 714, 716; Hanberry v. Hanberry, 29 Ala. 719, 723.

It is insisted by appellant that the suit for divorce was not for the purpose of redressing matrimonial wrongs asserted in the pleadings and evidence; and that she prosecuted the suit under such circumstances as to be a fraud upon the law and under the doctrine of recrimination-"not in good faith," and merely for the purpose of obtaining money from her husband "without just and reasonable foundation" or prompted by malice or oppression toward her husband-and should be denied admittance and success in equity. Brindley v. Brindley, 121 Ala. 429, 431, 25 So. 751; Jones v. Jones, 189 Ala. 286, 288, 66 So 4; Sessoms Grocery Co. v. International Sugar Feed Co., 188 Ala. 232, 235, 66 So. 479; 19 C.J. 93, § 219.

It has been held that the awarding of permanent alimony in gross in sums of about one-half of the net worth of the husband was excessive. Farrell v. Farrell, 196 Ala. 167, 71 So. 661; Black v. Black, 199 Ala. 228, 74 So. 338; Shelton v. Shelton, 206 Ala. 483, 90 So. 491; McWilliams v. McWilliams, 216 Ala. 16, 112 So. 318; Eckerle v. Eckerle, 219 Ala. 371, 122 So. 618.

The general rule, or that of our cases from Smith v. Smith, 45 Ala. 264, 268, to the present Smith v. Rogers, 215 Ala. 581, 583, 112 So. 190, 191, is that:

"*** The 'allowance' contemplated by our statute is something more than a mere substitute for the current maintenance and support normally due from the husband to the wife during their joint lives and the continuance of the marriage relation. This is confirmed by our decisions which have adopted as a standard basis for estimating the allowance, subject, of course, to various qualifying circumstances, the approximate value of the wife's interest in the husband's estate if she were his surviving widow. Jeter v. Jeter, 36 Ala. 391, 401; King v. King, 28 Ala. 315.

"In accord with this theory of the nature of permanent alimony, especially where awarded in gross, it is said that:

"'The amount of the allowance ordinarily varies from one half of the husband's estate to a third, or even less, although it would seem that where the wife is entitled to alimony and he is possessed of an estate, it would be improper under any circumstances to give her less than what her dower interest therein would have been, for the reason that he should not be allowed to profit by his own wrong.' 1 R. C. L. 930, § 77."

The general rule and our other cases are stated in 1 R. C. L. 930; King v. King, 28 Ala. 315; Jeter v. Jeter, 36 Ala. 391, and is restated by Mr. Justice Somerville in Smith v. Rogers, supra.

We have carefully examined this record, and are of opinion that the wife was induced by the husband to the honest belief-accepted in good faith-that he was not guilty of the unfaithful and unlawful conduct charged against him in the seduction suit; and that her continued relations with him were not a condonation of his conduct, so as to preclude her action when she was informed and awakened to the true relations that the husband had sustained to other women. Mischler v. Duchman, 159 La. 478, 105 So. 559. This is within the equitable doctrine of "clean hands," and allowed the wife to allege in a divorce suit such "act of seduction," with other acts of infidelity that had destroyed her confidence in her husband. And the testimony of the wife, this complainant, in the former seduction suit against the husband, to the effect that she was present in the husband's store two years before, at or about the time or hour the alleged seduction and criminal act is alleged to have been committed or occurred in the dressing room of the husband's store, cannot, under the circumstances, be said to show that the wife was not deceived and misled by the husband, and her subsequent conduct in testifying for him and living with him was not a connivance or condonation by the wife of the husband's act of adultery with the said Ashworth, the plaintiff in the damage suit against Phillips. And there was no condonation of the husband's cohabitation with the witness Fowler. And the evidence of its corroboration supports or tends materially to support the positive testimony of the fact. And the fact that she hesitated and delayed the final conclusion of separation to May 5, 1929 (no act of condonation being shown within such time), merely shows that she did not desire to leave the husband, and was giving the whole circumstances a careful consideration before the final act of separation.

In Ortman v. Ortman, 203 Ala. 167, 170, 82 So. 417 420, the circumstances determining the amount of the award are stated as follows: "*** The wife's income or other means of support possessed by her, the joint labor and capacity for work of the husband and wife, their joint income; things blending with...