Opinion
01-14-1886
TYRRELL v. TYRRELL.
A. J. Smith, for the motion. J. B. Buchanan, contra.
Petition for divorce. On motion for alimony pendente lite.
A. J. Smith, for the motion.
J. B. Buchanan, contra.
BIRD, V. C. The petition in this case is filed for a judicial separation from bed and board, on the ground of cruelty, and for suitable maintenance for the petitioner and her children. The defendant resists this application, and insists that the facts stated in the petition do not bring the petitioner's case within the provisions of the statute. There is one allegation in the petition, which, if true, would seem to require the attention of the court. It is that on the eleventh day of November, 1885, the defendant beat the petitioner and tore the hair out of her head. I do not see very well how the defendant could be guilty of these acts without intending to injure his wife. A blow might be struck from sudden provocation or anger, but pulling the hair from the head of the wife is not only extremely cruel, but evidence of deliberation. Therefore I think that the case made by the petition is within the statute.
It is said, however, that this beating is emphatically denied by the defendant in his answer, which, being sworn to, has been read as an affidavit in the cause, and that therefore the claim for alimony pendente lite must be denied. I do not think that necessarily follows. If that were so, alimony pendente lite would seldom be ordered in litigated cases. The defendant admits the principal charge in connection with the alleged beating,—that is, the pulling of his wife's hair,—but by his answer would make it appear that it was done by him accidentally. When sitting by the side of his wife, and embracing her, her hair caught in the button of his coat, whereby all the hair pulling that took place was done. It may be that these were acts of affection, but I cannot go so far, at this stage of the case, as to say that the answer raises sufficient doubt as to the truth of the allegations of the petition to justify the refusal of alimony. This view is not at all in conflict with the cases cited by the counsel of the defendant.
I will advise alimony at the rate of $3 per week, each and every week from the date of the order, and a counsel fee of $10.