Williams v. Williams

• Decision Date: 28 January 1922
• Citation: 236 S.W. 938,146 Tenn. 38
• Parties: WILLIAMS v. WILLIAMS.
• Court: Tennessee Supreme Court

236 S.W. 938

146 Tenn. 38

WILLIAMS v. WILLIAMS.

Supreme Court of Tennessee.

January 28, 1922

Appeal from Chancery Court, Davidson County; James B. Newman Chancellor.

Suit for divorce and alimony by Mrs. Mary F. Williams against David Shelby Williams. From a decree granting a divorce and alimony, both parties appeal. Decree modified.

John J Vertrees and W. O. Vertrees, both of Nashville, for appellant.

Thos H. Malone, of Nashville, for appellee.

SMITH J.

This is a suit begun in the chancery court by the complainant, the wife, against the defendant, the husband, for divorce and alimony, based upon charges of adultery by the husband. An absolute divorce was granted, and alimony allowed in the sum of $7,500, which includes $2,500 for counsel fees. Both the complainant and the defendant have appealed to this court to that portion of the decree with respect to alimony, the complainant contending that the amount of alimony allowed is too little, and the defendant that none at all should be allowed, and, if any, less than that allowed by the chancellor.

The contention of the defendant to the effect that complainant is not entitled to any alimony at all is predicated upon the facts which are undisputed here that the wife has a separate estate of something like $500,000, from which she derives an income of over $20,000 per annum, an estate more than sufficient to provide for her suitable support and maintenance, and that the statute only provides for alimony when it is needed for that purpose.

Certainly the wife in this case does not need alimony for her support since she has ample income to abundantly provide for her support--all that her situation in life could possibly require. This is conceded by the complainant, but it is maintained for her that by virtue of the marital relationship she is entitled to suitable support from her husband, at least to the extent of his ability and within reasonable limitations, regardless of the value of her separate estate or income, and that the amount to which she would be otherwise entitled should be increased by reason of the husband's misconduct which brought about the separation.

Counsel have displayed much learning and research on the subject of divorce and alimony, and have drawn upon the ecclesiastical law and decisions of numerous courts in various jurisdictions in support of their respective arguments. No authoritative case directly in point appears to have been discovered. Indeed the subject is one which must be governed by our statutes and by the interpretations that have been put upon them by previous decisions of the court. It seems quite clear upon principle and authority that the right to alimony must be found in the statutes, and the amount thereof fixed upon the considerations named in the statute. We are therefore led directly to this source for the knowledge of the law by which the rights of these parties must be determined. Of course we may have access to the ecclesiastical law and the decisions of courts of law and equity in arriving at a proper interpretation of the statutes.

The statutes of Tennessee on this subject are found in Shannon's Code at sections 4221 to 4224. They were brought into the Code of 1858 at sections 2468 to 2471 substantially as compiled in Shannon's Code from the Acts of the General Assembly of 1835-36 and 1841-42. As found in the Code above referred to the statutes are as follows:

4221. "Whether the marriage be dissolved absolutely or a perpetual or temporary separation be decreed, the court may make an order and decree for the suitable support and maintenance of the complainant and her children, or any of them, by the husband, or out of his property, according to the nature of the case and the circumstances of the parties."

4222. "And in such case the court may decree to the wife such part of the husband's real and personal estate as it may think proper. In doing which, the court may have reference to the property which the husband received by the wife at the time of the marriage, or afterwards, as well as to the separate property secured to her by her marriage contract or otherwise."

4223. "The court may enforce its orders and decrees by sequestering the rents and profits of the real estate of the husband, if he has any, and his personal estate and choses in action, and by appointing a receiver thereof, and from time to time causing the same to be applied to the use of the complainant and her children, or by such other lawful ways and means as are usual and according to the course and practice of the court, as to the court shall seem meet and agreeable to equity and good conscience."

4224. "If the wife, at the time of a decree dissolving a marriage, be the owner of any lands, or have in her possession goods or chattels or choses in action acquired by her own industry or given to her by devise or otherwise, or which may have come to her, or to which she may be entitled by the decease of any relative intestate, she shall have entire and exclusive dominion and control thereof, and may sue for and recover the same in her own name, subject, however, to the rights of creditors who became such before the decree was pronounced."

It will have been noticed that it is provided by section 4221 that "the court may make an order or decree for the suitable support and maintenance of the complainant * * * by the husband, or out of his property, according to the nature of the case and the circumstances of the parties," and in section 4222 the words " may decree to the wife such part of the husband's real and personal estate as it may think proper." In section 4223 it is said "the court may enforce its orders and decrees by sequestering the rents," etc., or "by such other lawful ways and means as are usual and according to the course and practice of the court, as to the court shall seem meet and agreeable to equity and good conscience," and in section 4224, "If the wife * * * have [[[property] acquired by her own industry or given to her * * * she shall have entire and exclusive dominion and control thereof," etc.

The word "may" appearing in these various sections of our statutes is the subject of controversy here; it being contended by the defendant that the use of this word indicates that it is within the discretion of the court to disallow alimony where it is made to appear that the wife does not actually need funds for her support. On the other hand, it is contended that the word "may" is to be interpreted as meaning "shall" or as imposing upon the court the duty of allowing some alimony under all circumstances.

Neither contention is strictly accurate. Sections 4221, 4223 and 4224 are taken from chapter 26 of the Acts of 1835-36, sections 10 and 11. By reference to the original acts it will be observed that the Legislature, instead of using the words "the court may," etc., as found in sections 4221, 4223, and 4224, used the words "it shall be lawful for the court," etc. These words are evidently intended to confer upon the courts the power, but not to impose under all circumstances the absolute and imperative duty of doing so. The statute is not one within the principle frequently applied where the word "may" is interpreted to mean "shall." What is lawful is not always necessarily expedient. There is no necessary connection between divorce...