Rearden v. Rearden

• Decision Date: 30 June 1923
• Docket Number: 5 Div. 828.
• Citation: 97 So. 138,210 Ala. 129
• Parties: REARDEN v. REARDEN.
• Court: Alabama Supreme Court

97 So. 138

210 Ala. 129

REARDEN v. REARDEN.

5 Div. 828.

Supreme Court of Alabama

June 30, 1923

Appeal from Circuit Court, Chambers County; S. L. Brewer, Judge.

Bill for alimony by America Rearden against Judge Rearden. From a decree for complainant, respondent appeals. Modified and affirmed.

N. D Denson & Sons, of Opelika, for appellant.

Chas S. Moon, of La Fayette, for appellee.

SOMERVILLE J.

The bill of complaint is filed for alimony, without divorce. It shows that the parties were married in 1901, and separated in 1919; the allegation of the original bill being that complainant "was forced by her husband to leave her home with him and take up her residence with others, and that she was without fault." To this was added, by amendment, the allegation that "said respondent abandoned complainant hired an automobile of a negro and sent her away, and has contributed nothing to her maintenance or support since."

In bills of this character it is not necessary for the wife to show such fault on the part of the husband as would support a bill by her for divorce. Spafford v. Spafford, 199 Ala. 300, 74 So. 354, L. R. A. 1917D, 773; Anonymous, 206 Ala. 295, 89 So. 462.

The bill, as amended, sufficiently shows that respondent caused complainant to leave his home and is not subject to demurrer in that respect. The allegation as to the financial status of respondent is that he "is well fixed financially, owning about $10,000 worth of real and personal property in Chambers county, Ala., consisting principally of farms, mules, cattle, hogs and farm produce." This is sufficient to require a reference to ascertain his probable income. Johnson v. Johnson, 190 Ala. 527, 529, 67 So. 400. If, as insisted, the bill contains some irrelevant allegations, this does not render it demurrable. The demurrer to the bill, as amended, was properly overruled.

The duty of maintenance owed by the husband to the wife is not absolute. "He is bound to support her at the common home, and not under another's roof, unless his own improper conduct has forced her to seek shelter elsewhere. Hence if she abandons her home without cause, the right to support from her husband at once ceases." Brindley v. Brindley, 121 Ala. 429, 432, 25 So. 751, 752. Taking a reasonable view of all the testimony in this case our judgment is that complainant and defendant are both substantially at fault in the causation and perpetuation of the domestic discords which led up to their separation, and, if respondent had not himself consented to and procured her departure from his home, we would be unwilling to affirm her right to have out of his income a separate maintenance.

But we are convinced from the testimony that respondent not only aided her to get away, but that he approved and consented to her departure, and was an active party to the separation. Under these circumstances it is within the province of the court to place upon respondent the burden of separate maintenance. We would hold otherwise if the evidence showed that respondent had not approved nor consented to the separation, and had held out to complainant the offer of maintenance in his own home under conditions which were tolerable to her.

Under our decisions the duty of maintenance here sought to be enforced is laid upon the income of the husband only, and not upon his tangible property. Murray v. Murray, 84 Ala. 363, 365, 4 So. 239; Brady v. Brady, 144 Ala. 414, 418, 39 So. 237; Clisby v. Clisby, 160 Ala. 572, 575, 49 So. 445, 135 Am. St. Rep. 110; Johnson v. Johnson, 190 Ala. 527, 67 So. 400. Complainant is 56 years old, and respondent about 60. The register reports that respondent owns 200 acres of improved farm lands, worth $25 per acre; mules and wagons, worth $425; and farm produce worth $542-a total of about $6,000. Deducting indebtedness, his net wealth is about $5,300. His gross income from the farm lands for 1920 was $542, against operating expenses of $660-there being a net loss of $118 for that year. No other evidence was presented as to respondent's income.

The register further reports that complainant has $600 of her own, with a...