Opinion
01-03-1898
FURTH v. FURTH.
Clarence Atkinson, for complainant. Samuel W. Belden, for defendant.
Action by Altheria Furth against Harry C. Furth, her husband, for nonsup port. Decree ordered for plaintiff.
Clarence Atkinson, for complainant.
Samuel W. Belden, for defendant.
GREY, V. C. (orally). I think I ought to dispose of this case now. There is practically no dispute that the complainant has made such a case as entitles her to a decree that the husband support her. He testifies he is not willing to live with her, but that he is willing to support her if he had the means; and upon his testimony only the court is asked to accept his statement that he is wholly without means, that he is largely indebted, and that he is unable to obtain any employment whereby he may earn enough money to support his wife as a full answer to the relief sought by the complainant's bill. It is apparent that the defendant is a man in good health and strong of body. He has a trade, which has enabled him, not in a very remote past, to earn a large weekly stipend, and he has had employmentsince which he says he has accepted at a much less rate, which has brought him in some money. His statement—and it is a matter which is peculiarly within his own knowledge, and scarcely capable of being contradicted—has not been disproven. He says he has earned only at the rate of $1.50 per day at occasional employment, and that he is indebted to his brother. I do not think I am called upon to give unlimited credit to the statement of the defendant as to his ability to earn a living. His feeling to his wife is evidently hostile, and I am not led to believe, from his manner on the stand, that he would be eager to increase his income, if with the increase came the ability to support his wife. Nor do I consider his statement that he is presently unable to earn a sufficient sum to support his wife as a reason for dismissing the bill without relief to the wife. I think he should fully understand that the obligations of his marriage contract, and the consequent duty that he owes to the woman whom he contracted to support, and to the public, to carry the burden of his wife's maintenance, still rest upon him, and may justly be expected to be fully performed by him. The mere fact that the husband presently has no money does not discharge him of the duty to support his wife, though it may be some excuse for a present failure. His duty to support his wife is continuous, and is not dependent upon his prosperity. There should be a decree for the complainant accordingly.
As there is no affirmative proof of present capacity fully to maintain the wife, I think it is right that the sum allowed for alimony should be made so low that any healthy man, irrespective of a favorable engagement, should be able to earn it, and there should go into the decree a provision that the money be payable each week, subject to the further order of the court This will keep the matter under control, and make the defendant understand that the duty which is required of him is the support of his wife according to his circumstances in life. I can see that some embarrassment may attend upon the enforcement of the decree, but there is no other way to do Justice to the parties, and to put the burden of performing the marriage contract where it should rest. I will advise an order that the defendant pay to the complainant two dollars each week until the further order of the court. I think any man, engaged in any employment, the very lowest, if he is a mere carter or digger on the streets, ought to be able to earn enough to support himself and pay two dollars per week.
I am more embarrassed to know what should be done with relation to the costs.
Mr. Atkinson: I do not want any costs taxed, as far as we are concerned.
The Vice Chancellor: Counsel for complainant, upon hearing delivered the opinion of the court indicating its embarrassment as to an order for the payment of costs, declares that he has no desire to have such an order put upon the complainant
Mr. Atkinson: We waive that.
The Vice Chancellor: I think the complainant will, by the proposed decree, be treated with all the consideration to which, under the circumstances, she is entitled. You may draw a decree in accordance with the views I have expressed.