Winkler v. Winkler

• Decision Date: 03 March 1913
• Docket Number: 15,895
• Citation: 61 So. 1,104 Miss. 1
• Court: Mississippi Supreme Court
• Parties: WINKLER v. WINKLER. MAX WINKLER v. ELIZABETH WINKLER

61 So. 1

104 Miss. 1

WINKLER v. WINKLER.

MAX WINKLER v. ELIZABETH WINKLER

No. 15,895

Supreme Court of Mississippi

March 3, 1913

APPEAL from the chancery court of Jones county, HON. SAM. WHITMAN Chancellor.

Suit by Max Winkler against Elizabeth Winkler for divorce. From a decree awarding alimony to the wife, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

W. S Welsh, attorney for appellant.

No brief on file by counsel for appellant.

Bullard & Gavin, attorneys for appellee.

There was no exception by the appellant to the decree awarding alimony against him, nor to anything that occurred at the trial, and the evidence upon which the court acted was not made part of the record. The decree cannot therefore be disturbed unless upon the face of the record it is absolutely void, because the court had no jurisdiction to render it.

The decree is not void. Independently of any statute under the practice of the ecclesiastical courts, which our courts adopt, the allowance of alimony was, and is, always a matter of discretion with the court. Our statute, section 1673, Code 1906, quoted by appellant is but an enunciation of the rule of the ecclesiastical courts. By the terms of it when a divorce shall be decreed from the bonds of matrimony the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the case, etc., of the children, and touching the maintenance and alimony of the wife or any allowance to be made to her, etc.

This does not restrict the exercise of the court's discretion to cases where the divorce is granted to the wife, and this exercise of that discretion by the court may, and in fact was, controlled by matters not now before the court, and of which it cannot judge, because the decree was not excepted to and the evidence upon which he acted was not made part of the record. It may have been the peculiar merit, situation and need of the wife; it may have been the appellant's recognition of the justice of her demand, her need, and his consent to the allowance; it may have been any one or all of the multitudinous things that would have justified the court in the exercise of this discretion, and as the appellant made no objection to it, the court will not now disturb it.

In 14 Cyc. 769 (5) the rule is stated thus: "As in the case of allowance of temporary alimony, an award of permanent alimony is within the discretion of the court, although if the award is erroneous on its face, or unjust to either party, or oppressive, it is subject to revision and correction on appeal.

There seems to be no case exactly in point from this court, but because of the peculiar applicability of it to, this case we quote in full the opinion of the supreme court of Alabama in the case of Edwards v. Edwards, 84 Ala. 361, 3 So 896. This was a case where the divorce was granted to the husband and STONE, C. J., speaking for the court said:

"When the former suit between these parties was before us (80 Ala. 97) we said: "The clearly established facts show a sad case of family alienation and discord, but much of the blame is chargeable to complainant. Mrs. Edwards was complainant in that suit; she is defendant in this. It was not said the entire blame rested on her. The clear implication is that it was not so regarded. Her character is not questioned in this suit, and all the testimony proves her to be a working, struggling, economical woman, doing even hard and menial service. Doubtless, she did her share in building up the little property they had gathered about them. Her daughters, two of the only three children of the marriage, and who have quite attained to years of discretion, prefer to remain, and do remain, with her, in the sad disruption of the household; while only the youngest child, a son, remains with the father. This is a pregnant circumstance, and is at least persuasive to show that the fault is not all hers. We differ somewhat with the chancellor, and reserve, and here render so as to pronounce judgment as follows: We award to complainant as temporary alimony, fifty dollars; as counsel fees, fifty dollars; and we divide the cost of the petition equally between the parties; and the parties will pay as here indicated. That part of the decree which relates to what is called 'permanent alimony' we leave as the chancellor fixed it--thirty dollars, semiannually, making sixty dollars per annum; subject, however, to such alteration as the chancellor may hereafter make, to be dictated by changes that may occur in personal or property relations. Williams v. Hale, 71 Als. 83. Reversed and rendered."

Appended to the report of this case in 3 So. is this note: "The appellate court will not interfere with the action of the trial court in granting the wife alimony in an action, unless there is manifest abuse of discretion." Citing Peck v. Peck 15 N.E. 12; Campbell v. Campbell, 3 N.W. (Iowa) 522; Wyatt v. Wyatt, 10 P. 228 (Idaho) and note.

In this case there is nothing to show that the undoubted discretion of the court was improperly exercised, the appellant did not except to it, and the decree so entered will be affirmed.

REED, J. SMITH, C. J., concurring.

OPINION

REED, J.

Appellant filed his bill for divorce against appellee on the sole ground of desertion. Appellee answered, making a general denial, and stating that she had four children by her marriage with appellant, the eldest of which was then only six years old, that appellant had left her and his little children in destitute circumstances, and that she was supporting herself and children out of her earnings of about six dollars per week. The court rendered a decree granting a divorce, and ordered appellant to pay the sum of fifty dollars as alimony pendente lite and twenty dollars per month as permanent alimony. Later, appellee petitioned the court, stating that appellant had failed to make the payments of the alimony, and asking the court to adjudge him in contempt, and require him to furnish security for the payments. The court entered an order in accordance with the petition. Appellant then moved the court to vacate and annul the decree of the court allowing the alimony, and appealed to this court from the action of the chancery court in awarding appellee alimony in the original decree for divorce.

The contention of appellant is that the court could not allow the appellee, the wife, alimony in a decree sustaining a bill for divorce filed by appella...