Opinion
No. 27549.
January 28, 1929.
1. HUSBAND AND WIFE. While marriage relation continues, generally, wife is entitled to support only when living with husband.
While marriage relation continues, wife is only entitled to support from husband when she continues to live with him, provided he is willing for her to do so, and so acts that she can do so.
2. HUSBAND AND WIFE. Decree against wife in previous separate maintenance suit held res judicata of her right to alimony pendente lite in husband's divorce suit, situation not having changed.
Decree rendered against wife living apart from husband in previous suit for separate maintenance held res judicata of her right to alimony pendente lite in husband's suit for divorce, where no change in situation of parties appeared.
APPEAL from chancery court of Itawamba county, HON. ALLEN COX, Chancellor.
Geo. T. and Chas. S. Mitchell, for appellant.
It will be remembered that appellee filed this suit for divorce and it is our contention that, and we believe that it is a settled rule of law in this state, when a party files a bill for divorce against his wife and when she files a motion for alimony pendente lite, this fact of itself entitles her to a decree for a reasonable amount as alimony pendente lite and it is not permissible to consider the merits of the case at the temporary hearing but the court is bound by law to enter a decree for a reasonable sum in said matter.
The only question involved in this case is whether a decree entered in a former suit, the suit being for separate support and maintenance, denying to the wife separate support and maintenance bars her from her claim for temporary alimony in a subsequent suit filed by her husband for divorce. In our opinion, we are convinced that such does not bar the wife from her claim for temporary alimony and we, therefore, respectfully submit that the court erred in so holding. I.L. Sheffield, for appellee.
There is no question but that in a proper case the chancery court has the power to award alimony pendente lite and attorney's fees. Of course in so doing the circumstances of the parties should be inquired into and I take it as fundamental that the wife is not entitled to alimony pendente lite where her estate is sufficient. Evans v. Evans, 126 Miss. 1, 88 So. 481. It has also been held that the wife is entitled to alimony pendente lite regardless of her personal earning capacity, of course it appearing that the husband is able to pay. Alimony pendente lite is awarded to take care of the wife pending litigation. The litigation, as I view the case at bar, is the one in which these questions are involved. But the wife in this case, rather than move the court for alimony pendente lite and attorney's fees, set the cause down for hearing on a motion for permanent alimony, attorney fees, etc. This question was thoroughly tried and judgment rendered and the wife was disallowed alimony of any kind, the children were however awarded twelve dollars and fifty cents a month, and this, in view of the fact that the evidence showed the husband owned no property and has a very limited earning capacity, was a reasonable allowance. Divorce was not involved in the former trial, but the specific question involved in that case was the identical question involved in this case. The wife in that case No. 26,534 in this court, brought suit for alimony pendente lite and permanent, and for attorney's fees. The court disallowed alimony, permanent and temporary. In that cause, the husband, Kirby L. Maxey, in his pleadings and in open court offered to take his wife back and support her in his own home. The evidence shows that he had repeatedly made the same offer and that she had as often refused same.
In the case at bar, the husband filed his bill for divorce, setting up his bona-fide offer of reconciliation and his willingness to take his wife back and to support her and the children in his own home, and he alleged that since the refusal of his bona-fide offer more than two years had elapsed and that therefore he is entitled to a divorce upon the statutory grounds of desertion.
On the question of divorce and the right of the wife to alimony pending same, my idea of the law is that alimony being an incident of such suit, she ordinarily is entitled to it, if the facts justify it, provided she answers the bill for divorce; provided her answer shows necessary facts and provided the question is not res adjudicata. No answer was filed, and nothing showing changed conditions and therefore it is my idea of the law that under the authority of Rylee v. Rylee, 142 Miss. 832, 108 So. 161, the plea of res adjudicata on the question of alimony pendente lite was properly sustained by the court. See Coffee v. Coffee, 145 Miss. 872, 111 So. 377.
This is a suit for a divorce by the appellee, the husband, and the appeal is from an order disallowing the appellant's request for alimony pendente lite. The relevant facts are, in substance, as follows: In 1926 the appellant, who was then living apart from the appellee, instituted a proceeding in the court below for separate maintenance and for the support of two children. The appellee there claimed that the appellant left him of her own accord without fault on his part. The court, on full hearing, refused to allow her any separate maintenance, but did allow a support fund for the children. No change in the situation of the parties has occurred since the decree in that proceeding was rendered.
The allowance of alimony pendente lite is simply a method of providing for the separate maintenance of the wife by the husband pending the determination of a divorce proceeding, she then living apart from him. While the marriage relation continues, the wife is only entitled to support from the husband when she continues to live with him, provided he is willing for her to, and so acts that she can, so do. Coffee v. Coffee, 145 Miss. 872, 111 So. 377, with which compare Winkler v. Winkler, 104 Miss. 1, 61 So. 1, Ann. Cas. 1915C, 1250, and Elam v. Elam, 129 Miss. 36, 91 So. 702. In the appellant's suit for separate maintenance the court decided that she was not then entitled thereto, and, as no change in the situation of the parties appears, the decree then rendered is res judicata of the appellant's right to a separate maintenance here pending the dissolution of the marriage. Whether that decree would be res judicata here in event the situation of the parties had changed since it was rendered is, of course, not here presented; no such change appearing. We must not be understood as holding that, in event the former decree had not been rendered, the appellant would not be entitled to alimony pendente lite. Assuming that there is a marriage to be dissolved, "the general rule is, of course, that such alimony will be allowed, and the merits not inquired into." Reed v. Reed, 85 Miss. 126, 37 So. 642. In the Coffee case an examination of the original record discloses that the question of alimony pendente lite was submitted to and determined by the court on final hearing.
The court below allowed the appellant counsel fees, and the appellee in his brief complains thereof; but no question relative thereto is presented for the reason that no cross-assignment of error was filed.
Affirmed and remanded.