Opinion
8 Div. 222.
June 24, 1943.
Appeal from Circuit Court, Jackson County; W. J. Haralson, Judge.
Bill for separate maintenance by Nora Annis Kelley against Roy R. Kelley, and cross-bill for divorce by respondent. From a decree granting relief on the original bill and dismissing the cross-bill, respondent appeals.
Affirmed.
Wm. C. Rayburn, of Guntersville, for appellant.
The court cannot decree a permanent allowance to wife out of husband's estate when it denies a divorce, since such permanent allowance is incident to decree of divorce. Code 1923, § 7418, as amended by Gen.Acts 1933, p. 119; Norrell v. Norrell, 241 Ala. 170, 1 So.2d 654. The statutes provide the only ways in which wife may obtain alimony. It would be unauthorized and inequitable to allow alimony where, on suspicion that her husband is guilty of adultery, she remains away from him and refuses to accompany him to a new home. Code, 1940, Tit. 34, §§ 30, 31, 32, 33. The husband may choose and fix the domicile of himself and wife, and when she refuses to accompany him and share the home of his selection, this is tantamount to an abandonment of him by her and if continued for sufficient time is ground for divorce. Winkles v. Powell, 173 Ala. 46, 55 So. 536; Neville v. Neville, 220 Ala. 57, 124 So. 107.
Hayes Weeks, of Scottsboro, for appellee.
The decree awarding separate maintenance to appellee is in all things proper. Ortman v. Ortman, 203 Ala. 167, 82 So. 417; Murray v. Murray, 238 Ala. 158, 189 So. 877. Appellant having sufficient means and failing to support appellee, separate maintenance was properly decreed. Benton v. Benton, 214 Ala. 321, 107 So. 827; Glover v. Glover, 16 Ala. 440; Wohlert v. Wohlert, 217 Ala. 96, 114 So. 906; Spafford v. Spafford, 199 Ala. 300, 74 So. 354, L.R.A. 1917D, 773; Waldrop v. Waldrop, 222 Ala. 625, 134 So. 1; Kinsey v. Kinsey, 37 Ala. 393; Pearce v. Pearce, 132 Ala. 221, 31 So. 85, 90 Am.St.Rep. 901; Bailes v. Bailes, 216 Ala. 569, 114 So. 185. The testimony does not support appellant's charge of voluntary abandonment on part of appellee without fault on his part. Decree denying relief on the cross-bill was without error. Stone v. Stone, 206 Ala. 568, 90 So. 794; Israel v. Israel, 185 Ala. 39, 64 So. 67; Stephenson v. Stephenson, 215 Ala. 545, 112 So. 119; Brown v. Brown, 178 Ala. 121, 59 So. 48; Mayo v. Mayo, 199 Ala. 551, 74 So. 971.
The legal duty of the husband to support and maintain the wife is incident to the marriage relation, begins with marriage and continues so long as they are husband and wife, unless, in the meantime, events relieve the husband of this legal duty.
If a separation comes under circumstances which absolve the wife of a duty to further cohabit with the husband, the duty of separate maintenance arises, and continues so long as the wrongful conduct of the husband renders a continued separation free from fault on the part of the wife.
Courts of equity have inherent jurisdiction, apart from divorce statutes, to entertain bills for separate maintenance, and decree a reasonable monthly allowance in keeping with the station in life of the parties, having due regard to the income of the husband and other pertinent circumstances; the court retaining a continued control over such allowance to meet changed conditions, and to enforce its decrees. These principles are so well settled in our jurisprudence that citation of cases seems superfluous.
In the instant case, the wife filed her bill for separate maintenance in 1936. Pending the suit, after a reference, an allowance of $40 per month was decreed to complainant, to be paid each month, pending the suit. These monthly allowances have been paid quite faithfully down to final decree in March, 1943. Soon after the original bill was filed in 1936, the respondent filed his answer and cross-bill seeking an absolute divorce on the ground of abandonment. An amendment to the cross-bill was filed in 1941. Evidence being taken on the issues presented by the original bill, amended cross-bill and answer thereto, the cause was submitted for final decree on the cross-bill, and cross-complainant denied relief.
Appellant here challenges this ruling on the ground that the husband, having the right to choose the domicile of the family, had occasion to remove from Scottsboro to Sheffield, desired to do so, was ready to provide a home in Sheffield; that the wife, without good cause, refused to accompany him to Sheffield.
The cases of Winkles v. Powell, 173 Ala. 46, 55 So. 536, and Neville v. Neville, 220 Ala. 57, 124 So. 107, relied upon by appellant, define the law in this regard. The refusal of the wife to go with the husband to a new home selected by him may constitute an abandonment, subject to certain limitations, not necessary to here consider.
But, as in the Winkles case, the evidence in this case fully supports a finding of the trial court that this was not the cause of the separation; that the husband's relations with another woman, prior to the separation, and continued to this day, fully justified a separation on the wife's part; or, on the other hand, supports a finding that the husband abandoned the wife without cause. We forego any detailed discussion of the evidence. We do note, however, that the detailed allegations of fact in the original answer and cross-bill as a basis for the charge of abandonment by the wife were wholly at variance with the contention now made. The amendment of 1941 merely charged abandonment in general terms.
We find no error in denying to the husband a divorce dissolving the bonds of matrimony.
Quite clearly this holding did not terminate the wife's right to continued separate maintenance, but tended to strengthen her case in that regard. That the allowance is reasonable and proper in amount is not seriously questioned. We need not go into details on this point.
Affirmed.
GARDNER, C. J., and FOSTER and LAWSON, JJ., concur.