Waldrop v. Waldrop

• Decision Date: 16 April 1931
• Docket Number: 6 Div. 756.
• Citation: 222 Ala. 625,134 So. 1
• Parties: WALDROP v. WALDROP.
• Court: Alabama Supreme Court

134 So. 1

222 Ala. 625

WALDROP v. WALDROP.

6 Div. 756.

Supreme Court of Alabama

April 16, 1931

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Bill for separate maintenance by Madge Waldrop against W. L Waldrop. From a decree for complainant, respondent appeals.

Affirmed in part, and in part reversed and remanded.

L. D Gray, of Jasper, for appellant.

Pennington & Tweedy, of Jasper, for appellee.

BOULDIN J.

Bill in equity for separate maintenance of the wife.

Much of the record deals with the controversy as to who was at fault in the separation of husband and wife and their continued living apart.

Beginning with the removal from Huntsville to Jasper in 1925, the husband entering upon a new field of employment, and the wife going for the time with their two children on a visit to her father and mother in Louisiana, it does not appear that either had a definite purpose of final separation.

During the three years which followed before the bringing of this suit, there was a drifting apart. The effort of the wife, by continuing her profession as a teacher, to support herself and children, and lessen the burden on her parents, as she had done to aid her husband in former years, cannot justly be viewed as indicating a purpose to break with her husband.

One outstanding fact is that, save for his trip to Louisiana in the spring of 1926, when the baby was very sick, the only occasions when they were together was when the wife and children came to Alabama, meeting him at the home of his mother at Christmas time, 1926, and again while she was attending a summer school in Birmingham-Southern College in 1928.

The friendly helpful attitude of her father and mother, and, so far as appears, of his family also, has been altogether commendable.

Not to go to see either wife or children during this long period nor to contribute any substantial amount to their support and care in sickness or in health, while adding steadily to his own accumulations, speaks loudly in the case.

A detailed discussion of the evidence disclosing the attitude of both parties toward all the obligations of family life, leading on to the suggestion of divorce, and the reactions of both parties in that regard, would serve no good purpose. Suffice to say a careful study of the record satisfies us the trial court was well supported in his finding that the abandonment of further hope of living together was effected by the peremptory announcement of the husband of such purpose in Birmingham in 1928, leaving the wife nothing to do but to go her way while he should go his way.

It follows complainant has not forfeited her right to separate maintenance. Rearden v. Rearden, 210 Ala. 129, 97 So. 138; Rogers v. Rogers, 215 Ala. 259, 110 So. 140; Anonymous, 206 Ala. 295, 89 So. 462.

Complainant has no separate estate nor income other than from her personal earnings as a teacher. Respondent argues there is no right to separate maintenance where the wife can and does make a living, and is not liable to become a public charge.

Brady v. Brady, 144 Ala. 414, 39 So. 237, and Ex parte State ex rel. Tissier, 214 Ala. 219, 106 So. 866, are relied upon as authority. These cases deal with allowances pendente lite before the wife has any adjudication of a right to separate maintenance. In the Brady Case it appeared she had property sufficient to maintain her during the pendency of the suit. Whether such rule should apply to mere ability to maintain herself by her earnings is not here involved. No temporary alimony pendente lite was awarded.

We would make it plain that a husband in Alabama cannot cast off his wife and relieve himself of the duty of maintenance because she is able to take care of herself by her work. Even more apparent is it that he cannot defend upon the ground that she has parents able and willing to contribute to her support, if need be, and that without the thought of recompense. No such construction is to be put on the above-cited cases.

The danger of the wife becoming a public charge is stated as one of the reasons in law for awarding the wife separate maintenance. But this court has expressly declared "another purpose is to right the wrongs of an injured wife, and the latter purpose will be served even though the former be not involved." Ex parte Allan, 220 Ala. 482, 125 So. 612, 614.

The rule has been declared in this state, and consistently adhered to, that, in awarding separate maintenance or alimony without suit for divorce, the court deals only with the husband's income. Bailes v. Bailes, 216 Ala. 569, 114 So. 185; Murray v. Murray, 84 Ala. 363, 4 So. 239; Brady v. Brady, supra; Clisby v. Clisby, 160 Ala. 572, 49 So. 445, 135 Am. St. Rep. 110; Rearden v. Rearden, supra.

But it is also firmly fixed in our law that actual temporary income is not the sole basis of such award. Available income from property holdings and earning capacity are factors now fully recognized. Johnson v. Johnson, 195 Ala. 641, 71 So. 415; Ex parte Whitehead, 179 Ala. 652, 60 So. 924; Thomas v. Thomas, 211 Ala. 504, 100 So. 766; Epps v. Epps, 218 Ala. 667, 120 So. 150; Rearden v. Rearden, 210 Ala. 129, 97 So. 138.

In this case there are two girl children, one 11 years of age when the bill was filed in 1928, the other 4 years of age. These have been in the custody of the mother since 1925. They so remain with the implied consent of the husband; and we deem it proper to add that, so far as this record discloses, they are where they should be.

The maintenance of these children is a prime consideration. The high duty of the father to maintain them persists. An award or an increased allowance to the mother to aid in their support is a well-recognized and proper practice. No legal requirement of a guardian is recognized. The duty of a father to contribute to the maintenance of his children is not limited to his income. He must support his...