Opinion
11-28-1899
FLOWER v. FLOWER.
A. H. Swackhamer, for complainant. John W. Wescott, for defendant.
Bill for alimony by Hannah Flower against George Flower. Decree for plaintiff.
A. H. Swackhamer, for complainant.
John W. Wescott, for defendant.
GREY, V. C. The petition in this case is filed by the complainant in the cause under a bill and decrees for alimony, etc., made some years ago. The bill prays that the defendant may be decreed to provide for the support of the wife for such time as the nature of the case may require, and that he may be compelled "to pay the same from time to time under the compulsory orders of this court," etc. Answer was filed, issue joined, and on the hearing decree was made for complainant on January 3, 1889, ordering separation from bed and board for five years, with leave to the parties, by joint petition, within the five years, to ask for a modification or discharge of this decree. Further decree was made that the defendant pay the complainant $400 per year for the maintenance of the complainant and their youngest child, and that the defendant give bond to secure that payment, with provision that either party "may apply to this court at any time for an increase or diminution of the said amount." On February 12, 1889, an application was made by defendant to modify the terms of the decree so as to reduce the amount of alimony required to be paid. There was a hearing on this, and by order of February 25, 1889, it was again adjudged that the parties be separated from bed and board for five years from January 3, 1889, with like leave to apply within the five years by joint petition to have this decree modified, etc. It was also further ordered that the defendant pay $350 per year for the support and maintenance of the complainant and the youngest child, etc., with the same proviso, that either party "may apply to this court at any time for an increase or diminution of said amount," etc. The defendant, by answer and several affidavits, resists the granting of any relief to the complainant.
There is nothing in the petition or in the answer and annexed affidavits disclosing a situation that will justify further consideration of the merits of the cause, which were passed upon in the original suit. So far as the marriage, the abandonment, and the non-support by the husband justify a decree, they must be taken to have been established in the principal suit; and therefore the subject-matter of all the affidavits which address themselves to the conduct and character of the parties previous to the decrees of January 3 and February 25, 1889, was within the consideration of the court in making those decrees, and is not before me, as I am not here reviewing the wisdom of the action of the court in making those orders. No appeal appears to have been taken from either of them. Both of those orders contained provisions that either party might apply to increase or diminish the amount of alimony allowed, and also contained provisions that the order then made should be for the maintenance, not only of the complainant, Mrs. Flower, but of her son Charles, who was at that time under-age. The defendant partially performed the later decree, by paying all the money he was called upon to pay up to the time—according to my estimate, by comparison of dates—until his son Charles was 21 years of age. I think the 5 years must have run out about that time. The order of separation was not obligatory upon him after that, and he might, had he chosen so to do, have taken his wife home and lived with her. He did not do that. He thinks he gives sufficient reason by saying that she has a temper. He did not make any trial of her. He took his own course, and therefore left the decree still binding and operative.
Nor do the proofs now submitted show him presently to be in any way disposed to assume the support of his wife, or give any sufficient reason for his failure. For five years after the child came of age he has paid no alimony, and no application was made to the court. That has been decidedly to the advantage of the defendant, and not to his disadvantage. The terms of the decree for payment of alimony are not limited to a payment for five years. That limitation, by the express terms of the decree, applies only to the period of separation from bed and board. During the past five years he has not been compelled to support his wife, although the last decree has not, in terms, been modified. Nor does the present application seek to require payment of alimony past due under former decrees. That is to the advantage of the defendant. That somebody else undertook the duty which he ought to have undertaken. That the children, who, while they may be obliged to support their mother, are not primarily so obliged, should have fulfilled that obligation, is no answer on the part of the husband for his failure to support his wife.
We have, then, the obligation on the part of the husband to support his wife asserted and established by decree, and the only question is whether that decree should be modified. The husband says he is not presently able to earn enough money to carry out the decree as originally framed. He denies, indeed, his ability to support her to any extent; but his own affidavit shows that within the last year he earned more wages than ever before. He says his immediate situation, however, is not such that he will be able to pay any alimony. That is for the future, and I do not think, upon his own statement, merely, in view of the facts disclosed by the affidavits, he should be free from the obligation to support his wife, and be at liberty to cast her maintenance upon somebody else or upon the public. I think there should be an enforcement of this obligation. At the same time, the present circumstances are such that it is quite clear that the terms imposed upon this husband by the former decree should be modified. The court, in making the last decree, obviously considered that the amount ordered to be paid should support, not only the wife, but also the son; and the need for the support of the son has now been discharged by his arrival at full age. The circumstances in this case are not such as to call for any extraordinary or even liberal allowance. It is quite plain that there is no probability that the wife will render any of the services which a wife should render, and the defendant has therefore to carry along her support without receiving any compensation in return whatever. The wife should have support such as the husband is fairly able to give her, but she ought not to have any more. The allowance should not be upon terms of excessive liberality, where there is uncertainty as to the continuity of the husband's income. The courts do not favor decrees by which the man is charged to pay large sums to support his wife, when she does not live with him and does not do anything for him. It is not intended to make such an arrangement attractive. They allow it upon terms which will free the public, and those upon whom as a matter of charity it might be cast, from the necessity of maintaining her, and will keep her in such reasonable Comfort as the husband can certainly afford. The charge in the last decree, February 25, 1889, was $350 per year, payable in weekly payments. The child was then under-age, and was to be supported out of the sum allowed. If the husband is charged to pay $3.50 per week, it will be an amount such as, under the circumstances of the case, I think the husband is able and ought to pay for the support of the wife alone. I will make an order, with the same rights reserved to either party to apply for a modification of the order in case the circumstances of the case should warrant it.
Mr. Swackhamer, for Petitioner: I was going to suggest that this woman could get along with less money if she were allowed the use of the house.
The Vice Chancellor: No; in fixing her support, she will have to take it in money. Orders of that character suggested by you usually lead to disagreement of the parties, and consequent complications, and the courts do not favor them.
Mr. Swackhamer: Will the court allow a counsel fee?
The Vice Chancellor: Yes; the matter has been litigated, and I will allow $20 counsel fee.