Rainwater v. Rainwater, 41099

• Decision Date: 06 April 1959
• Docket Number: No. 41099,41099
• Parties: Homer T. RAINWATER v. Mrs. Pennie Dandelake RAINWATER.
• Court: Mississippi Supreme Court

Page 608

110 So.2d 608

236 Miss. 412

Homer T. RAINWATER v. Mrs. Pennie Dandelake RAINWATER.

No. 41099.

Supreme Court of Mississippi.

April 6, 1959.

Wm. S. Murphy, Lucedale, for appellant.

Charles K. Pringle, Biloxi, for appellee.

LEE, Justice.

Mrs. Pennie Dandelake Rainwater, on her bill of complaint in the Chancery Court of Harrison County against Homer T. Rainwater, her husband, in which cause the defendant entered his appearances, was, by decree of date of March 18, 1943, awarded temporary maintenance with support fixed at $100 per month. Thereafter, on the defendant's answer and cross-bill, charging habitual, cruel and inhuman treatment, Rainwater was, by decree of June 1, 1943, awarded a divorce, but his wife's support was continued in the amount originally decreed.

Subsequently, on June 3, 1944, on Rainwater's petition, the support payments were reduced to $65 per month; and thereafter by decree of date of February 17, 1945, monthly payments at that rate were required until the further order of the court.

Rainwater again on August 14, 1945, filed a petition for reduction in the amount of payments; but after Mrs. Rainwater filed an answer thereto and asked for judgment for the amount in arrears, he moved for a dismissal of his petition without prejudice, and, on February 13, 1946, the motion was sustained.

Nothing further transpired in this cause until October 28, 1950, when Mrs. Rainwater filed her petition, alleging that her former husband has made no payments to her for the years 1946 to 1949 and for ten months of 1950, inclusive, and prayed that he be adjudged in contempt. The defendant answered, and, by his cross-bill, prayed that he should be purged of any previous contempt and that no further assessments for separate maintenance should be awarded. The cause was partially heard at that time and was continued for further hearing in vacation, but the same was not heard further and no decree was ever entered.

Mrs. Rainwater, on February 19, 1953, filed another petition to have the defendant cited for contempt; and on August 26, 1953, she moved for a decree based on the partial hearing which had been conducted on November 8, 1950; but no action was taken thereon.

Again on October 11, 1956, Mrs. Rainwater filed a petition, alleging that no payments had been made to her for the years 1946 through 1955, inclusive, and ten months of 1956, and prayed for judgment thereon and that her former husband should be held in contempt. Rainwater, on November 21, 1956, filed a motion to dismiss the last named petition of his former wife. Considerable evidence was taken thereon, and the motion was overruled. Mrs. Rainwater's 1950 petition to have her former husband cited for contempt was then amended to show that there had been no payments for the years 1946 to 1955, inclusive, and for ten months of 1956.

At the hearing on the merits, Mrs. Rainwater testified that she and the defendant were married on August 10, 1931; that they were divorced in 1943; and that the last payment of alimony to her was made in November 1945. She was then 46 years of age, was not trained for any special work, and her earning capacity was very small. Besides she had been, and then was, in bad health and largely dependent on her family and friends.

Rainwater testified that he had a B. S. Degree from Mississippi State University, a Master's Degree from Indiana University, had done work on a Ph. D. at the University of California, and had done special study at Mississippi Southern College, the University of Mississippi, and Louisiana State University. When he obtained the divorce, he was an entomologist in the employ of the U. S. Department of Agriculture, receiving a salary of $5,000 per year. However shortly after obtaining the divorce, he suffered the rupture of a blood vessel in one of his eyes, became totally disabled, and was forced to retire from his employment. In the meantime, he had married again and moved to California, where, for three years, he worked as a common laborer in the Kaiser Steel Mills. His second wife, who had about $8,000 when they were married, died, and after the payment of expenses, he relinquished his interest in the remaining $4,000 in favor of their daughter, Caroline, and set up a trust fund for her education. After his disability, he had made no payments to his first wife. He married a third time; and in 1950 got a position in Mississippi as a teacher, and has continued in that occupation ever since. For the first several years his salary was $1,600 per session; and in 1953, it was raised to $1,800, and for 1954 and 1955, it was $2,600. His pension, on retirement, was $60 per month, but from time to time it was increased, and for the last several years, it has been $93 per month. His present wife also teaches and has been receiving a salary of $178 per month. He estimated his expenses for groceries, gas, utilities, upkeep of the home, laundry and pressing, clothing, expenses of his car, tithing, and miscellaneous expenses. In one itemization thereof he admitted that he had a balance of receipts over expenditures of approximately $58 per month. George Rainwater, a brother, testified that Homer has a very moderate living; that he is not capable of following an occupation other than teaching; that he was able to secure that work because of the scarcity of teachers; and that his wife assisted him in reading, in grading papers, and in driving the car.

The chancellor, in his written opinion, held that,...