Rogers v. Rogers

• Decision Date: 17 November 1926
• Docket Number: 3 Div. 739
• Citation: 110 So. 140,215 Ala. 259
• Parties: ROGERS v. ROGERS.
• Court: Alabama Supreme Court

110 So. 140

215 Ala. 259

ROGERS v. ROGERS.

3 Div. 739

Supreme Court of Alabama

November 17, 1926

Appeal from Circuit Court, Escambia County; John D. Leigh, Judge.

Bill in equity by Tula B. Rogers against George W. Rogers. Decree for complainant, and respondent appeals. Affirmed in part, and in part reversed and remanded.

Thos B. Hill, Jr., of Montgomery, for appellant.

Hamilton & Caffey, of Brewton, for appellee.

BOULDIN J.

The suit is for alimony without divorce.

A decree for counsel fees and alimony pendente lite is interlocutory. No statute providing for review by appeal, no such remedy obtains. The remedy is by mandamus. Brady v Brady, 144 Ala. 414, 39 So. 237; Jackson v Jackson, 211 Ala. 277, 100 So. 332.

The same rule has been applied to a decree on a motion to modify an allowance to the wife for the maintenance of a child, the decree being left open and cause retained for that purpose. Buttrey v. Buttrey, 214 Ala. 465, 108 So. 35.

In that case alimony to the wife was awarded in a lump sum, with the additional continuing allowance for the child. The opinion treats and speaks of the main decree as a final one.

Where, as here, the cause is submitted for final decree upon the report of the register and exceptions, and after confirming the report awarding alimony pendente lite and counsel fees, the court proceeds to decree alimony for the future, awarding a fixed sum payable monthly "until the further orders of the court," and decreeing the cost of suit against respondent, we think the decree is final in such sense as will support an appeal. It is a full determination of the equities in the case; adjudicates the right to alimony and the amount thereof under present conditions. The finality of the decree as regards an appeal is not affected by retention of power to modify by further orders to meet changed conditions. Morgan v. Morgan, 211 Ala. 7, 99 So. 185; Bell v. King, 210 Ala. 551, 98 So. 794.

We have found it difficult to decide this case upon its merits. It is the story of husband and wife toiling together for some 20 years to acquire and pay for a little farm home and rear a large family. The details of the life of labor and simple, hard living could serve no good purpose. We are impressed that in the mere matter of providing food, shelter, and clothing, and sending the children to school, there was no such want of interest and effort on the part of the husband and father as would, for that cause alone, justify the wife in a severance of the family relation.

In the exercise of the fatherly duty of family discipline, much must be left to discretion and judgment. Yet, if carried to a point of cruelty, it is the right of the mother to intervene. Sparing details, we conclude on the whole the father was not free from fault in the deprivation and severity which led the three oldest children to leave the family roof one by one the daughter just entering young womanhood, and the boys mere youths. This conclusion is fortified by the fact that the young lady went forward promptly to qualify and teach school and soon married, and nothing indicates the boys are wanting in an effort to make their own way. We note further that when the mother left the family home, the seven youngest, including those 15 and 14 years of age, went with her, and it does not appear any one of them has been inclined to stay with the father, although their new life, it appears, has carried hardship and work much as before. A sharp controversy appears as to the personal treatment of the husband toward the wife. Upon a study of the testimony of both, points of corroboration by other evidence, and all the circumstances, we accept the testimony of the wife on this line as substantially true. In view of her admitted purity and manifest loyalty to all the relations of wife and mother, the charge of unfaithfulness by the husband must be regarded as extreme cruelty. Mindful of the definition of cruelty in our law as a ground of divorce, we nevertheless must hold that persistent false accusation of this sort, unatoned, causing the wife to leave his roof, does not forfeit her right to continued maintenance. It is a sound, just rule that declares the...