Suter v. Suter

• Decision Date: 11 February 1895
• Citation: 72 Miss. 345,16 So. 673
• Court: Mississippi Supreme Court
• Parties: THOMAS E. SUTER v. LAVINIA SUTER

16 So. 673

72 Miss. 345

THOMAS E. SUTER v. LAVINIA SUTER

Supreme Court of Mississippi

February 11, 1895

FROM the chancery Court of Harrison county. HON. W. T. HOUSTON Chancellor.

Bill by appellee against appellant for divorce, on the ground of desertion. Complainant also alleged that the defendant had treated her in a cruel and inhuman manner, but no specific acts of neglect or cruelty were shown, and no proof was taken on this ground.

Complainant alleged that she was a resident of Harrison county, Miss. and that the defendant resided in New Orleans, La. In his answer the defendant denied that complainant was a resident of Harrison county, Miss. and averred that her residence was in the city of New Orleans, where he resided. He also denied the other allegations of the bill upon which the right to relief was sought. It was shown that the defendant owned certain property at Biloxi, Miss. which was used as a summer residence for himself and family; that in 1887 his leg was broken, and he was unable to carry on his business of a house and sign painter in the city of New Orleans, and, on account of this and sickness, his family was moved to the summer residence, the home in New Orleans being rented for the sake of economy; that after his recovery he returned to New Orleans and resumed his occupation, and endeavored to have the complainant return and live with him, but that she refused to do this, and refused to let the children do so. It was further shown that, notwithstanding this, the defendant continued to pay bills for the support of the family. After answer filed and testimony had been taken, complainant applied for an allowance of temporary alimony and counsel fees. Proof was introduced for and against this application. The court excluded certain testimony of the defendant, and on the testimony offered by complainant, entered an interlocutory decree in her favor for $ 100 counsel fees and $ 20 per month temporary alimony. From this decree defendant appeals.

Section 1562, code 1892, provides that wilful, continued and obstinate desertion for the space of two years shall constitute a ground for divorce. Section 1567 provides, among other things, that the chancery court shall have jurisdiction in suits for divorce where one of the parties was domiciled within this state when the action was commenced, and one or the other of them resided within this state for one year next preceding the commencement of the suit. The opinion contains a further statement of the facts, as found by the court from the record.

Reversed.

Ford &amp Ford, for appellant.

The charge of desertion is the only thing necessary to be considered in determining the right of appellee to alimony pendente lite. The court below endeavored to follow Porter v. Porter, 41 Miss. 116, and McFarland v. McFarland, 64 Ib., 449, which laid down the rule that, in applications for alimony pendente lite, the court will not consider the merits of the cause. But, where the answer denies the allegations of the bill and avers the want of good faith in bringing the suit, the court will hear the proof, and, if satisfied of the want of sincerity in bringing the suit, it will refuse alimony.

Alimony pendente lite is not strictly a matter of right, but is controlled by the discretion of the court. 2 Bish. on Mar. & Div., §§ 430, 936, 939. Here it is manifest that there was no desertion, and that the wife had no right to remain away from the domicile and place of business of her husband. The evidence shows that complainant knew, when she filed the bill, that she had no grounds upon which to maintain the suit, which, we submit, is not being prosecuted in good faith.

The court is without jurisdiction. Appellant's domicile is in Louisiana, and the domicile of the husband is that of the wife. 8 Gray (Mass.), 506; Schouler's Dom. Rel., §§ 37, 38, 39; 5 Am. & Eng. Enc. L., pp. 754, 868. It is only where the misconduct of the husband has driven the wife into another state, or where he has wrongfully abandoned her, and gone into another state, that she is permitted to have another domicile. Cheever v. Wilson, 9 Wall. (U. S.), 108. The court should have refused to entertain the suit.

W. A. White, for appellee.

That husband and wife may have separate domiciles for the purpose of suit for divorce, is well settled. Cheever v. Wilson, 9 Wall., 108; 2 Bish. on Mar., Div. & Sep., §§ 112, 120, 127; 5 Am. & Eng. Enc. L., p. 755; Jones v. Jones, 67 Miss. 195. Even the pendency of a plea to the jurisdiction does not take from the court the power to allow alimony pendente lite. 1 Am. & Eng. Enc. L., p. 475; 2 Bish. on Mar., Div. & Sep., 934. If a defendant, domiciled in another state, appears by an attorney, alimony may be decreed against him. 1 Am. & Eng. Enc. L., p. 468, note 3; 2 Bish. on Mar., Div. & Sep., §§ 79, 81.

The court properly refused to enter into an investigation of the merits of the cause on the hearing of the petition for alimony. Porter v. Porter, 41 Miss. 116; McFarland v. McFarland, 64 Ib., 452; 2 Bish., 940. It is...