Rowe v. Rowe, 4 Div. 671

• Decision Date: 21 December 1951
• Docket Number: 4 Div. 671
• Citation: 256 Ala. 491,55 So.2d 749
• Parties: ROWE v. ROWE.
• Court: Alabama Supreme Court

Page 749

55 So.2d 749

256 Ala. 491

ROWE v. ROWE.

4 Div. 671.

Supreme Court of Alabama.

Dec. 21, 1951.

C. L. Rowe, pro se.

Walter J. Knabe, Montgomery, for appellee.

The bill is in pertinent part as follows:

2. That complainant and respondent were married on, to-wit, February 10, 1940, and have lived together as husband and wife since said date until April 30, 1950, at which time respondent without cause ceased to live with complainant, and subsequently, and on, to-wit, May 12, 1950, respondent ordered your complainant to leave the home of complainant and respondent. Since said time he has refused to support your complainant.

3. During the time complainant and respondent were living together they erected a home in the City of Elba. Said home is furnished in large part with furniture which belonged to complainant at the time of said marriage. During their married life complainant and respondent together have by their joint efforts accumulated a reasonable estate.

4. Respondent is a professional man with a substantial income from his profession.

The prayer for relief is that upon hearing decree 'be issued requiring respondent to support complainant as his wife and to give her access to the home of the parties and that if this Honorable Court deems meet that part of the property accumulated by the joint efforts of the parties be delivered to her as her separate estate; and complainant prays for such other, further and general relief as may seem meet and proper to this Court.'

SIMPSON, Justice.

The appeal is from an interlocutory decree overruling a demurrer to a bill in equity. Appellee, wife of appellant, filed the bill, which is in two aspects. The first aspect sues appellant for separate maintenance and the second aspect relates to property and a division thereof. The first aspect is good, the second bad.

Demurrer was addressed to the bill as a whole and also specially to the two aspects. Without ruling on the demurrers to the separate aspects, the trial court rendered a general decree overruling the demurrer to the bill. The effect of such a ruling was a ruling only on the demurrer to the bill as a whole and if either aspect were good, the decree is due to be affirmed. Badham v. Johnston, 239 Ala. 48, 193 So. 420. Cf. Alabama Chemical Co. v. Niles, 156 Ala. 298, 47 So. 239. See The Alabama Lawyer, Vol. 12 (1951), pp. 344, 353, The Demurrer in Equity, by Judge E. N. Creel. This is merely a corollary to the principle long established in our decisions that on appeal from a decree 'sustaining a demurrer to the bill' and no reference is made in the decree to the grounds of demurrer going to a part or aspect of the bill, only grounds going to the sufficiency of the bill as a whole will be considered, Penton v. Brown-Crummer Investment Co., 222 Ala. 155, 131 So. 14, and where a bill sets up several distinct equities, if complainant is entitled to relief on one or more, a decree sustaining the demurrer generally is to be referred to the grounds of demurrer addressed to the bill as a whole. Florence Gin Co. v. City of Florence, 226 Ala. 478, 147 So. 417; Steele v. Freeman, 250 Ala. 336, 34 So.2d 139; Wood v. Estes, 224 Ala. 140, 139 So. 331; Oden v. King, 216 Ala. 504, 113 So. 609, 54 A.L.R. 1413.

The first aspect of the bill relative to complainant's right to separate maintenance shows that the defendant, without cause, ceased to live with her and ordered her to leave their home, which they had erected in the city of Elba; that since said time defendant has refused to support her, although he is a professional man with substantial income. This is a sufficient averment on which to rest a decree for separate maintenance. The contention of appellant that the bill should make some showing as regards the wife's financial status is untenable. The duty of supporting the wife devolves upon the husband, though she may be able to support herself or have a separate estate or other means of support. Waldrop v. Waldrop, 222 Ala. 625, 134 So. 1; Neil v. Johnson, 11 Ala. 615; 101 A.L.R. 442, note.

The matter of the allowance and the amount, however, are within the sound discretion of the court, depending on the circumstances, one of which would be whether the wife is without means. Murray v. Murray, 238 Ala. 158, 189 So. 877; Higgins v. Higgins, 222 Ala. 44, 130 So. 677.

Since the first aspect of the bill was good and the decree overruling the demurrer generally is referred to the bill as a whole and is interpreted as a failure on the part of the trial court to rule with reference to the several aspects of the bill, it results that the decree is due to be affirmed.

We regard it, however, as appropriate to refer to some well established legal principles for future guidance of the trial court with reference to the second aspect of the bill. The allegations as regard that aspect are to the effect that the home was erected in the city of Elba during the time complainant and respondent were living together, was furnished in large part with furniture which belonged to complainant at the time of the marriage, and during their married life the parties together, by their joint efforts, have accumulated a reasonable estate, presumably title to which is in appellant. Terrell v. Marion County, 250 Ala. 235(7), 34 So.2d 160. We approve of brevity and perspicuity in pleading, but this aspect of the bill is entirely too brief and indefinite in its allegations. If the...