Opinion
No. 29925.
March 28, 1932.
1. DIVORCE. Railroad fireman, paying divorced wife only seventy-five dollars during year after decree providing for payment of amount commensurate with his circumstances, could not complain of modified decree requiring payment of ten dollars monthly.
There was evidence that divorced husband earned average of one hundred thirty dollars per month; that former wife was earning only thirty-four dollars or thirty-five dollars per month; that she could not work continuously and needed medical treatment; that husband had remarried; and that his living expenses exceeded his earnings.
2. DIVORCE.
As respects wife's right to modification of alimony decree, divorced husband cannot avoid payment of alimony by spending more than his income.
APPEAL from chancery court of Hinds county. HON. V.J. STRICKER, Chancellor.
W.E. Morse, of Jackson, for appellant.
The court below erred in attempting to modify the original decree for divorce.
Griffith, Mississippi Chancery Practice, page 688, sec. 612; 19 C.J. 245.
Alimony has been refused where the wife has wilfully abandoned her husband without justification.
Lampson v. Lampson, 171 Calif. 332, 153 P. 238; Beekman v. Beekman, 53 Fla. 858, 43 So. 923; Ahrns v. Ahrns, 160 Ky. 342, 169 S.W. 720; Gilbert v. Gilbert, 149 Ky. 638, 149 S.W. 964; Garrison v. Garrison, 104 S.W. 980, 31 Ky. 1209; Smith v. Smith, 86 S.W. 678, 27 Ky. 776; Gains v. Gains, 19 S.W. 929; Lee v. Lee, 1 Duv. 196; Isaacs v. Isaacs, 71 Nebr. 537, 99 N.W. 268, 6 N.W. 768; Boubon v. Boubon, 26 N.Y.S. 715; Davis v. Davis, 161 P. 190; Harris v. Harris, 31 Gratt. (72 Va.) 13; Carr v. Carr, 33 Gratt. (63 Va.) 168; Chapman v. Parsons, 66 W. Va. 307, 66 S.E. 461, 135 Am. St. Rep. 1033, 24 L.R.A. (N.S.) 1015, 19 Ann. Cas. 453; Coffee v. Coffee, 111 So. 377.
The court erred in entertaining the petition of Mrs. Maggie Virginia Moore where she did not file answer or cross-bill in the original proceeding, but made an agreement with her husband with reference to alimony, which agreement was embodied in the decree.
Clark v. Clark, 98 So. 157.
Under section 1415, Hemingway's Code (Sec. 1673, Code of 1906) empowering the court to change alimony, where the circumstances of the parties have changed, a provision in the original decree retaining right to further change alimony is no more than the authority granted by the statute, and comes under it.
The court has no authority to change alimony, unless the circumstances of the parties have changed.
Section 1415, Hemingway's Code (sec. 1673, Code of 1906); Clark v. Clark, 98 So. 157; Malone v. Malone, 131 So. 872.
The court erred in allowing the evidence introduced by Mrs. Moore.
There was no allegation as to a change in the circumstances of the parties, and unless this allegation had been made, even if all other facts were before the court, this question could not be inquired into.
Clark v. Clark, 98 So. 157; 1 R.C.L. 935.
A decree entered by consent cannot be amended or vacated nor will a rehearing be allowed thereon except by like consent.
Pipkin v. Houn, 1 Freeman Chan. Rep. 257; Dibrell v. Carlisle et al., 51 Miss. 788; 19 Cyc. 502.
It is unnecessary for the original pleadings to anticipate a claim for alimony where grounds for a divorce or separation are sufficiently alleged, although the right to an award must be set up and proven during the course of the trial, or it cannot thereafter be asserted.
1 R.C.L. 883.
The petition was for a change of the decree and fixed a definite amount and was not a request of Mrs. Moore to have the court determine that J.H. Moore should pay ten dollars per month, or any sum per month as and when he was able so to do commensurate with his circumstances.
Appellee in this case has shifted her position entirely from the one assumed in the lower court. This basis cannot be shifted under the pleading, as the petition is for a change of the decree and to fix an amount certain as alimony to be paid each month. There is no allegation as to the change in the circumstances of the parties. This allegation would have had to have been for the court to entertain jurisdiction of any change.
McClendon Phillips, of Jackson, for appellee.
The propriety of the allowance of alimony in the original decree for divorce, entered on January 21, 1930, is not before this honorable court. If the lower court erred in allowing alimony in the original decree for divorce, and we do not think it did, the appellant cannot now be heard to complain thereof, first, because he did not appeal from said decree, and, second, because the alimony was allowed by and with his express consent.
While it is the general rule that "the relief to be decreed must conform to and come within both the pleading and the proof," still in divorce suits, owing to the fact that a demand for alimony is not an essential part of the cause of action, but is merely incidental thereto, the court may, in the proper cases, allow alimony although not specifically requested in the pleadings.
1 R.C.L. 883; Gaston v. Gaston, 114 Calif. 542, 46 P. 609; Cohen v. Cohen, 150 Calif. 99, 88 P. 267; Sprague v. Sprague, 73 Minn. 474, 76 N.W. 268.
It is proper practice in probably all jurisdictions for the complainant to pray for alimony in her petition, although the relief, being necessarily involved in every suit wherein a decree of divorce is rendered, will be granted even if not asked in the pleadings.
14 Cyc. 747; 1 R.C.L. 947; 1 R.C.L., p. 935, sec. 81.
The recital in the body of the decree that it was made with the consent of all parties, precludes them from complaining of it.
Dibrell v. Carlisle, 51 Miss. 788; Winkle v. Winkle, 104 Miss. 1.
It is the general rule that the matter of awarding permanent alimony as well as temporary alimony, is within the sound discretion of the court, it is not subject to revision and correction on appeal, unless it is erroneous on its face, or unjust to either party, or oppressive.
14 Cyc. 769.
It has been decided that a wife, though not entitled to a divorce, may have alimony when a divorce is decreed against her.
Coon v. Coon, 26 Ind. 189; Hedrick v. Hedrick, 28 Ind. 291.
The case at bar, as in the Winkle case, supra, the evidence upon which the lower court acted in allowing the alimony in the original decree, is not before this court, and it cannot be said that the learned chancellor abused his discretion in allowing the alimony.
In the case of Pryor v. Pryor, reported in 88 Ark. 303, 114 S.W. 700, the supreme court of Arkansas upheld an agreed decree for alimony where the divorce was granted the husband on the ground of wilful desertion.
The court did not err in entertaining the petition of Mrs. Maggie Moore where she did not file answer or cross-bill in the original proceeding, but made an agreement with her husband with reference to alimony, which agreement was embodied in the decree.
The court did not change or modify the amount of the alimony previously allowed, it simply fixed a definite amount, a sum certain which the appellant would be required to pay the appellee. This was strictly in accordance with the terms of the former decree and the agreement of the parties.
The court did not err in allowing the evidence introduced by Mrs. J.H. Moore.
In 1929 the appellant, J.H. Moore, a resident of Jackson, Mississippi, filed a suit for divorce against the appellee, Mrs. Maggie Virginia Moore, alleging desertion and further alleging that there was one child, a boy, who was residing with his father. The appellee in that suit filed a motion for attorney's fees and temporary alimony.
An agreement was reached between the parties that J.H. Moore would pay to the appellee alimony in such an amount as and when he was able so to do, commensurate with his circumstances, and that, in event he failed so to do, then the court could fix the amount of alimony to be paid.
A decree was granted upon the ground of desertion, reciting as follows: "It appears that the parties herein have agreed upon the alimony, that is, that J.H. Moore is to pay such amount as and when he is able so to do, commensurate with his circumstances, to Mrs. Maggie Virginia Moore, and in the event of failure on the part of J.H. Moore so to pay said alimony, then the court reserves the right to fix the amount of alimony to be paid."
This decree was rendered January 21, 1930, and on January 5, 1931, Mrs. Maggie Virginia Moore filed a petition in the present case showing that J.H. Moore had paid her only seventy-five dollars since the decree was entered on January 21, 1930; that he was employed by the railroad as a fireman, earning a substantial wage, and could have provided a reasonable support for her, but had willfully failed and refused so to do, and prayed that the court would carry out the terms of its former decree and fix a definite amount of alimony to be paid by the appellant per month.
The appellant answered this petition, undertaking to set up that Mrs. Moore deserted him without fault on his part, was living apart from him at the time the divorce was obtained, and that she was not entitled to alimony, and set up other grounds not necessary to set forth.
On the hearing of the motion, it appeared that J.H. Moore, as fireman, earned various amounts ranging from forty-five dollars to one hundred ninety dollars per month, an average of one hundred thirty dollars per month; that the total amount paid the appellee was only seventy-five dollars; that the appellee had worked in a hosiery mill at Meridian, earning only thirty-four dollars or thirty-five dollars per month, and that her health was such that she could not work continuously; and that she needed medical treatment.
The appellant further testified that, since the granting of the divorce decree, he had remarried, and that his living expenses were greater than his earnings, and that he was not able to pay any amount more than he had paid.
The chancellor decreed that he pay the appellee the sum of ten dollars each month, payable on the 1st of each month, beginning September 1, 1931, and from this decree this appeal is prosecuted.
It is argued that the chancellor had no power to change the terms of the decree to monthly payments, as the proof showed that there was no appreciable change in the condition of the parties since the rendition of the original decree.
We think there is no merit in this appeal. The agreement between the parties was that J.H. Moore should pay alimony to the appellee as and when he was able, commensurate with his circumstances. It was contemplated that he would pay a reasonable amount based upon his earnings. The decree expressly reserved to the court the power to determine what he should pay, in case he did not pay to the satisfaction of the appellee. No specific amount was fixed, and the amount to be paid was not to be determined absolutely by either party. In case they disagreed, the chancellor had reserved the power to decide the question.
We think the amount paid during the period was not a reasonable amount having a relation to the earnings and the circumstances of the parties.
Under no conception of legal right or justice could this payment of seventy-five dollars a year be held to be a compliance in good faith with the decree. When the last decree was rendered, the earnings of the appellant were somewhat uncertain, but we think the amount allowed is extremely small, considering the evidence in the record, and the impossibility to live in reasonable comfort on the earnings of Mrs. Moore plus the allowance of the chancellor. As the appellee has not complained by taking an appeal, we think the appellant is most fortunate, and is not entitled to complain. A person is not permitted to avoid the payment of alimony by spending more than his income, especially where the income is a fair one.
The judgment of the court below, therefore, will be affirmed.
Affirmed.