Opinion
7 Div. 530.
February 1, 1962.
Appeal from the Circuit Court, St. Clair County, L. P. Waid, J.
Frank B. Embry, Pell City, and Victor H. Smith, Birmingham, for appellant.
The court had no jurisdiction or authority to decree permanent alimony out of the husband's estate, when the court denied a divorce. Such permanent allowance ex necessitate legis is incident to a decree of divorce. Norrell v. Norrell, 241 Ala. 170, 1 So.2d 654; Penn v. Penn, 246 Ala. 104, 19 So.2d 353; Ex parte Tucker, 254 Ala. 222, 48 So.2d 24.
Suit for separate maintenance only is grounded on failure or refusal of the husband having sufficient means to adequately support the wife. A bill for separate maintenance is insufficient to support a decree therefor in the absence of allegation of husband's failure or refusal to furnish support. Benton v. Benton, 214 Ala. 321, 107 So. 827.
Where a wife, on separation from the husband sues for alimony alone, the court cannot take property from one spouse and give it to the other; the only duty which it can enforce is maintenance, for which purpose it can only deal with the incomes of the parties without power to compel either to labor for the other or divest either of the corpus of his estate. Clisby v. Clisby, 160 Ala. 572, 49 So. 445; Bailes v. Bailes, 216 Ala. 569, 114 So. 185; Rearden v. Rearden, 210 Ala. 129, 97 So. 138; Wallis v. Wallis, 240 Ala. 439, 199 So. 844; Jones v. Jones, 228 Ala. 178, 153 So. 203; Taylor v. Taylor, 251 Ala. 374, 37 So.2d 645; Ex parte Taylor, 251 Ala. 387, 37 So.2d 656; Caine v. Caine, 262 Ala. 454, 79 So.2d 546.
Starnes Holladay, Pell City, for appellee.
Allegations in bill for separate maintenance as to husband's ownership of property were sufficient. Rearden v. Rearden, 210 Ala. 129, 97 So. 138.
In case at equity trial court's findings of fact are like unto jury's verdict and presumptively correct. Brown v. Oldham, 263 Ala. 76, 81 So.2d 331; Lovelace v. McMillan, 265 Ala. 290, 90 So.2d 822.
Proceedings for separate maintenance, resulting in allowance to the wife, should always be left open, and within the full control of the court, for any change therein which the circumstances or the necessities of the situation may demand. Rearden v. Rearden, supra.
This is an appeal by the complainant from a decree denying him a divorce on the ground of voluntary abandonment and granting respondent's prayer in her crossbill for separate maintenance and a solicitor's fee.
The evidence on voluntary abandonment was not sufficient to warrant the relief under the complainant's bill. He and his wife became estranged and she moved into a separate room. While she had gone to visit relatives the complainant moved out and never returned. Manifestly, this did not entitle him to a divorce on the ground of voluntary abandonment. The situation here is much like that which appeared in the case of Caine v. Caine, 262 Ala. 454, 79 So.2d 546, where this Court ruled that the facts there did not warrant a decree of voluntary abandonment.
Appellant argues that the court was without jurisdiction to render a decree for separate maintenance since the husband had been contributing to the support of his wife prior to the filing of the bill by him, citing Benton v. Benton, 214 Ala. 321, 107 So. 827. The holding there is without controlling influence. Appellee did not file the bill, but it was filed by her husband seeking a divorce and she countered with a cross-bill praying for separate maintenance. The court having taken jurisdiction under appellant's bill, of course, was authorized to decree with respect to appellee's cross-bill, as was done. Such a decree, therefore, was without error.
Appellant also argues that the decree awarding separate maintenance was in fact a decree awarding permanent alimony, and that the court was without jurisdiction to so decree because no divorce was granted. This case does not present such a situation, but on the contrary the decree was one granting the wife separate maintenance under the prayer of her cross-bill. This the court likewise had jurisdiction so to do. Ex parte Tucker, 254 Ala. 222, 48 So.2d 24; Taylor v. Taylor, 251 Ala. 374, 37 So.2d 645; Coffman v. Coffman, 263 Ala. 367, 82 So.2d 333.
It is hardly necessary to observe that of course such a decree stands open at all times for revision by the trial court if the circumstances of the parties should be substantially changed. Rearden v. Rearden, 210 Ala. 129, 97 So. 138.
With respect to the amount of separate maintenance, the court awarded appellee $35.00 per week, a right to live in the home of appellant where she had been residing, and $150.00 as solicitor's fee. This case invites sympathy for both parties, since they are of considerable age, and the appellant's working capacity is decreasing, thereby decreasing his income. Before this law suit started appellee told appellant that if he would give her $100.00 per month and the house, he could do whatever he pleased. The court seems to have awarded her more than she was willing to take before the suit was filed and in view of the lessening of appellant's earning capacity and the situation of the respective parties, an award of $25.00 a week impresses us as sufficient for separate maintenance of appellee with the right to full use of their former home, which has several rooms and would be susceptible of being rented out. To the extent indicated the decree will be modified, with the right of appellee to petition the court for more weekly support if the circumstances should later show that appellant's income has substantially increased.
The decree of the lower court allowing appellee $150.00 for solicitor's fee is also affirmed, the same appearing to this Court to be fair and reasonable.
Modified and affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.