Smith v. Rogers

• Decision Date: 24 March 1927
• Docket Number: 7 Div. 621
• Citation: 112 So. 190,215 Ala. 581
• Parties: SMITH v. ROGERS.
• Court: Alabama Supreme Court

112 So. 190

215 Ala. 581

SMITH v. ROGERS.

7 Div. 621

Supreme Court of Alabama

March 24, 1927

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

Bill in equity by Esther Joe Smith, as administratrix of the estate of J.S. Rogers, deceased, against Hattie Rogers, the divorced widow of said J.S. Rogers. From a decree on demurrer to the bill complainant appeals. Affirmed.

Hood &amp Murphree, of Gadsden, for appellant.

W.J Boykin, of Gadsden, and L.H. Myers, of Fayetteville, Tenn for appellee.

SOMERVILLE J.

With respect to permanent alimony our statute declares:

"If the divorce is in favor of the wife for the misconduct of the husband, the allowance must be as liberal as the estate of the husband will permit, regard being had to the condition of his family and to all the circumstances of the case." Code 1923, § 7419; Code 1852, § 1972.

Under this statute as always construed, the allowance to the wife may be made in gross out of the husband's estate, payable presently, or as directed; or it may be made, as for continuous maintenance, payable in monthly or other periodical installments, during the life of the wife; or it may be made by a combination of both of these methods. King v. King, 28 Ala. 315; Jeter v. Jeter, 36 Ala. 391, 400; Turner v. Turner, 44 Ala. 437, 451; Smith v. Smith, 45 Ala. 264; Shelton v. Shelton, 206 Ala. 483, 90 So. 491; Morgan v. Morgan, 203 Ala. 516, 84 So. 754; second case, 211 Ala. 7, 99 So. 187; Ex parte Lavender, 207 Ala. 666, 93 So. 661; Johnston v. Johnston, 212 Ala. 351, 102 So. 709; Sharrit v. Sharrit, 112 Ala. 617, 20 So. 954. It has also been held that specific property may be awarded to the wife, by way of permanent alimony, and the title vested in her by decree of the court. Coffey v. Cross, 185 Ala. 86, 64 So. 95.

In Smith v. Smith, 45 Ala. 264, in construing this statute (Code 1867, § 2361), it was soundly observed that:

"This 'allowance' to the wife is not, in fact, alimony, in the sense of the ecclesiastical law of England; but it is more strictly an arrangement in lieu of a division of the estate of the parties."

It was there held that the statute intended that the "allowance" should pass to the wife "in absolute right as a permanent provision for her support," and that it could not be afterwards modified by judicial decree. By the later cases, however, it has been firmly established that a decree for permanent alimony, whether in gross or in installments for current maintenance, is subject to future modification if the original decree in terms reserves the right of control. Jones v. Jones, 131 Ala. 443, 31 So. 91; Ortman v. Ortman, 203 Ala. 167, 168, 82 So. 417; Morgan v. Morgan, 203 Ala. 516, 84 So. 754. But "except for reservation in the decree or express statutory authority the court has no power to alter the decree." Morgan v. Morgan, 211 Ala. 7, 99 So. 185; Mayer v. Mayer, 154 Mich. 386, 117 N.W. 890, 129 Am.St.Rep. 477, 19 L.R.A. (N.S.) 245; Livingston v. Livingston, 173 N.Y. 377, 66 N.E. 123, 61 L.R.A. 800, 93 Am.St.Rep. 600; 1 R.C.L. 946, § 92; 19 Corp.Jur. 269, § 616.

As declared in Smith v. Smith, 45 Ala. 264, 268, 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.

An examination of the decree in this case shows unmistakably that the rendering court reserved no control over its amount or its future enforcement. On the contrary, all orders were final and conclusive, reserving nothing to the court--quite different from the orders in Jones v. Jones, 131 Ala. 443, 31 So. 91, and Ortman v. Ortman, 203 Ala. 167, 82 So. 417.

Unquestionably, a decree for permanent alimony, without reservation of control by the rendering court, is a vested right. The question here presented is whether the death of the husband tolls his obligation to pay unmatured installments of alimony decreed, without reservation of control, to be paid in gross, in directed installments.

We need not, and do not, consider what the rule would be where the decree is for periodic payments for an indefinite period, for the current support of the wife. The decisions differ in the various jurisdictions, dependent upon variant statutory provisions, or variant theories as to the nature of alimony, or upon the terms of the decree itself. Storey v. Storey, 125 Ill. 608, 18 N.E. 329, 1 L.R.A. 320, 8 Am.St.Rep. 417; Wilson v. Hinman, 182 N.Y. 408, 75 N.E. 236, 2 L.R.A. (N.S.) 232, 108 Am.St.Rep. 820; Ex parte Hart, 94 Cal. 254, 29 P. 774; Gunderson v. Gunderson, 163 Minn. 236, 203 N.W. 786; Pingree v. Pingree, 170 Mich. 36, 135 N.W. 923; 1 R.C.L. 933, § 80; 19 Corp.Jur. 278, § 633.

But, on principle, there is no escape from the conclusion that a decree for alimony in gross, if without reservation, becomes a vested right from the date of its rendition and survives the death of the husband. Differing from a mere periodic allowance for current and continuous support, it is intended to effect a final termination of the property rights and relations of the parties, and is an approximate appraisal of the present value of the wife's future support, and, in a measure, a compensation for her loss of inchoate property rights in her husband's homestead and other estate, given to her by statute in case of her survival. Smith v Smith, 45 Ala. 264, 268; Jeter v. Jeter, 36 Ala. 391, 401, 402; Winslow v. Winslow, 133 Tenn. 663, 182 S.W. 241, Ann.Cas. 1917A, 245; Martin v. Martin, 195 Ill.App. 32; 19 Corp.Jur. 266, § 613. The decree...