Jeter v. Jeter , 36 Ala. 391 ( 1860 )

A. J. WALKER, C. J.

The defendant in this case, after the lapse of a little more than one year from his intermarriage with a young lady in the freshness of early womanhood, utterly abandoned the nuptial bed, and subjected his wife to an almost total exclusion from social intercourse with him. This singular state of self-imposed conjugal estrangement, for which we can deduce from the testimony no justification, commenced at the very time when the birth of a child should have drawn him into a closer and more endearing union, and continued during a period of more than four years, and until a final separation occurred. It is a teaching alike of human experience and of the law-books, that in7 the marriage state contented affection is one of the surest safeguards, and most satisfactory evidences of fidelity; while causeless alienation, and unaccountable and unreasonable aversion, are temptations to infidelity, and often the accompaniments and results of it. — Bishop on Mar. and D. § 420; Richardson v. Richardson, 4 Porter, 674. St. Paul, in the 7th chapter'of his fjrst epistle to the Corinthians, has set forth the regular enjoyment of wedded love as a shield oí virtue; and Milton says, that by it

“Adulterous lust was driven from men, Among the bestial herds- to range.”

Then, whether we look to the legal authorities above cited, or to the teachings of nature and holy writ, we are authorized, in a case of conjugal conduct like that of the defendant, to yield a more easy credence to circumstances which impugn the chastity, and may more properly give suspicious facts an unfavorable construction.

“Adultery is peculiarly a crime of darkness and secrecy; parties are rarely surprised in the act; and so it not only may, but ordinarily must, be established by circumstantial evidence.” — Bishop on Mar. and D. §422; Lawson v. State, 20 Ala. 65, 79. In reference to the character of circumstances requisite to establish the charge, Lord Stowell says: “In every case almost, the fact is iuferred from circumstances that lead to it by fair inference, as a necessary conclusion; and unless this were the case, and unless this were so held, n.o protection whatever could be given to marital rights. What, are the circumstances which lead to such a conclusion, can not be laid clown universally, though many of them, of a more obvious nature, and of more frequent occurrence, are to be found in the ancient books. At the same time, it is impossible to indicate them universally; because they may be infinitely diversified by the situation and character of the parties, by the state of general'manners, and by many other incidental circumstances, apparently slight and delicate in themselves, but which may have most important bearings in decisions upon the particular case. The only general rule that can be laid down upon the subject is, that the circumstances must he such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to load a harsh and intemperate judgment, moving upon appearances that are equally capable of two interpretations ; neither is it to bo a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man.” — Loveden v. Loveden, 2 Hag. 1, 4 Eng. Ec. 461. Lord Stowell’s rule is, perhaps, as definite as any that could be prescribed, and is not variant from the one recognized in this court, that the fact may be inferred “ from circumstances leading to it as a necessary conclusion.” — Richardson v. Richardson, 4 Porter, 475; State v. Crowley, 13 Ala. 172; Mosser v. Mosser, 29 Ala. 313. Tinder the rule above set forth, the inference of adultery could not be drawn from circumstances reasonably reconcilable with the assumption of innocence. — Bishop on Mar. and D. 428.

The testimony in reference to the commission of adultery by the defendant, is found in the depositions of the witnesses Taylor and Singley. The circumstances proved by Taylor are, when judged as they' “would strike the careful and cautious consideration 'of a discreet man”, certainly sufficient “ to lead the guarded discretion of a reasonable and just man to the conclusion” of the defendant’s guilt. ' There is no other reasonable supposition which will áccount for the attitude described of persons of different sexes, occupying the relation which existed between the participants in tine transaction at the time and place stated. The charge of adultery has been sustained upon circumstances less conclusive. — Harris v. Harris, 2 Hag. 376. The testimony of this witness is corroborated by that of Singley, which tends to show the perpetration of similar conduct, with the same person, on another occasion. And the relation in which the defendant lived with his wife, and his conduct towards her, the proper influence of which upon the issue was shown at the outset of this opinion, afford to the testimony of Taylor a strong corroboration, by giving to it a complexion of probability and reasonableness. We find nothing in the course pursued ,by the witness, after he had observed. the facts proved, to justify the dispute of his credibility. Corroborated and supported as is the evidence of this witness, we feel bound' to give it our fullest faith, notwithstanding he is the brother of the complainant. While his relationship subjects him to the suspicion of bias and prejudice, in such a case as this, it is ho ground for the rejection of tho evidence; and the corroboration of the testimony takes from the objection the slightest •claim to consideration here.' — Lockwood v. Lockwood, 2 Curt. 114. The defendant’s commission of adultery being established, the complainant was entitled to a divorce a vinculo matrimonii, under section 1961 of the Code.

The argument, that the girl with whom the adultery is alleged to have been committed, bad not attained the age of puberty, is not supported by the testimony.

[2.] Our law, as it existed before the adoption of the Code, required that the allowance, upon a decree of di-. vorce a vinculo matrimonii, should be made by a division of estate. — Clay’s Digest, 170, § 8; Lovett v. Lovett, 11 Ala. 763; Quarles v. Quarles, 19 Ala. 363. The language of the present is materially different from that of our old law, and is as follows: “If the wife has no separate estate, or if it be insufficient for her maintenance, the chancellor, upon granting a divorce, must decree the wife an allowance out of the estate of tlie husband; taking into consideration the value thereof, and the condition of the family.” — Code, § 1972. In the case of King v. King, (28 Ala. 315,) upon the -authority of this section of the Codo, a pecuniary allowance by way of permanent alimony was made by the chancellor, and the decree was affirmed by- this court. "We have, therefore, the sanction of a .judicial precedent for so construing the above copied section of the Code as to permit an allowance to be made by a decree for money, - instead of by a division,of the estate. This construction of our statute meets the exigency of that class of cases, in which a division of the estate in specie would be impracticable, or inconvenient; is consistent with the decisions in other States in reference to similar statutes; does no violence to the language of the law, and ought to be maintained as correct. — Samford v. Samford, 5 Day, 553; Fischli v. Fischli, 1 Blackf. 360; Richmond v. Wilson, 8 Yerg. 67. It is, therefore, no fatal objection to tbe chancellor’s decree in this casé, that it is for alimony to be paid in money.

[3.] The amount of the decree in the complainant’s favor is $20,000; and this, it is contended, is excessive. Section 1972 of the Code provides, that “if the divorce is in favor o,l the wife, for the misconduct of the hus-. band, the allowance must be as liberal as tlie estate of the husband will permit;- regard, being had to the condition of his family, and to all the circumstances of the .case.” The ascertainment of the proper allowance to a woman, obtaining a divorce, can not be subjected to any -fixed standard, and it must necessarily be loft, in a great .degree, to the control of judicial discretion. We have, however, in the section last above quoted, supplied to us by the legislative hand, the principles which are to influence that discretion. The court must consider the circumstances of the case, the condition of the family, and the estate of the husband, and then make (the husband’s .misconduct being the,ground of divorce) an allowance to the wife, which, viewed in the light of all these considerations, is liberal.

The conduct of the complaining wife, as developed in the circumstances of this ease, is certainly a proper matter of consideration. The manner in which the complainant spoke of her husband, in a letter addressed to an unmarried gentleman, who was her relative, and spoke of him and of her marriage to a gentleman with whom she had once had a matrimonial engagement, was extremely indiscreet and reprehensible, but involved no moral turpitude. While these acts can not be passed by without condemnation and censure, as inconsistent with the conduct of a prudent spouse; yet we have no evidence of the occurrence of such conduct on other occasions, and those acts seem to stand as blots upon a history otherwise blameless. Besides, it is some palliation of her improper conduct.in those particulars, that it did not occur until her husband had withdrawn every manifestation of affection, and deprived her of his counsel. For such misconduct, perpetrated under such circumstances, justice does not demand the denial of a liberal allowance to her. The defendant imputes a criminality to his wife, which would justify his deportment to her, and deprive her of all claim to his liberality, or to the liberality of the court; but, if such criminality existed, it is his misfortune that he has not been able to prove it, and the court must act upon the case as made by the testimony.

[4.] A rule for the ascertainment of the alimony of a wife obtaining a divorce has been frequently adopted, by which she obtains the same allowance that she would have received had she been widowed by the death of her husband. That rule was adopted iu the case of King v. King, (28 Ala. 315,) and has been sometimes adopted in other States. — Thornberry v. Thornberry, 4 Litt. 251; Jeanes v. Jeanes, 2 Har. 142. Bishop, in his able work on Marriage and Divorce, (§§ 628-625,) commends this rule as a standard, beneath which the court should not fall, except in special cases. It can probably be adopted, with justice and propriety, in a larger number of eases than any other; but the very nature of the'Subject, the diversity of the considerations to be regarded, and the difference between the parties and families to be affected, all forbid that .that, or any other, should be adopted as a universal rule. Cases may be conceived, in which the allowance, according to that rule, would be too little; and others in which it would be too mu,ch. 'It must always be held subject to variation by the circumstances of the particular casei

According to the statement of the defendant’s answer, his wealth now amounts to about $46,000. He has two children ; both sons; one the child of a former marriage, the'other the fruit of his .marriage with the complainant. The amount allowed by the chancellor no doubt exceeds the value of the dower and distributive share which the complainant would have received had she survived her husbánd; and it would be excessive, in the absence of special circumstances justifying a.departure from the rule above indicated. Such special circumstances are found in this case. The defendant, with'a generosity which we commend, has provided liberally for his oldest son, who is now over thirty years old ; and that provision probably exceeds the amount of the allowance to the complainant. The defendant, without any cause which we can gather from the evidence, disclaims the paternity of the child of his present marriage, and exhibits a sentiment towards it which precludes all probability of .his voluntarily contributing to its support and education, or permitting it to share in his estate. . The wife’s expenses and responsibility will on that account be increased, and the duty must devolve upon her alone of bringing theJ child forward when he attains his majority; and the child can never receive, any of his father’s estate, save through its mother. By virtue of the chancellor’s decree, the mother, with her son, will get a sum less, perhaps, than, that which the defendant’s older son has already received, and much less than will be left in the father’s hands, to remain an expectancy for the older son. This view of the condition of the family, and of the operation of the decree upon the members, shows that no injustice has been done by the chancellor in fixing the amount of the complainant’s alimony, and it ought not to be disturbed.

We entertain no doubt of the authority of the chancellor to secure the payment of his decree, by declaring a lien upon the defendant’s property.

[5-7.] So much of the chancellor’s decree as pertains to the wife’s support pending the litigation, and her expenses of suit, is not, in my opinion, before us for revision. The order of the chancellor upon these subjects is clearly not a final decree, (Ex parte King, 27 Ala. 387,) but, on the contrary, is subject to alteration during the pendency of the suit, when there has been a change in the husband’s circumstances. — De Blaquiere v. De Blaquiere, 3 Hagg. 322, (5 E. Ec. R. 126;) Rogers’ Ecclesiastical Law, 39; Shelford on Mar. and D. 596. As the order for temporary alimony and the wife’s expenses of suit was not a final decree, it is not, of itself, the subject of an appeal; for an appeal, under our system, lies only from a final decree. — Code, § 3016. If, then, it is before this court at all, it is by virtue of the appeal from the final decree. An appeal from a final decree, in my opinion, brings before the revising tribunal only those orders which, either directly or indirectly, affect the final decree;- but does not bring up any antecedent or contemporaneous order, which does not in the slightest degree affect the final decree. I think the authorities fully sustain this position. Jacques v. Methodist Church, 17 Johns. 559; Wilson v. Troup, 2 Cow. 208; Reid v. Vanderheyden, 5 ib. 735-737; Atkynson v. Munks, 1 ib. 702; Johnson v. Britton, Dudley’s Law and Eq. 24; Woodward v. Marriott, 1 Cooper’s Ch. R. (in ’37 and ’38) 62-68.

An order allowing to the wife temporary alimony and the expenses of her suit, is made without regard to the final decree, or to the question of right upon the merits of the cause. — Richardson v. Richardson, 4 Porter, 467; Bishop on Mar. and D. 581; Wright v. Wright, 1 Edw. Ch. R. 62; 2 Barb. Ch. 265. The order, therefore, can not-in the remotest degree affect the final decree, and, I think, can nqt be before us upon an appeal from the final decree. We have already held, that the final decree in this cause is correct; and if there is a reversal, we have the anomaly in the daw of a reversal upon an appeal, when the thing appealed from, and every thing which touches it, is precisely right: we .affirm: that which ^is appealed from, and reverse for an independent matter, not appealed fronl.

This point will be more striking, if we suppose the case of a final decree in favor of the. husband, and yet an order allowing temporary alimony and the expenses of suit, to the wife. Could the husband, in such a case, appeal from a final decree in his favor, and reverse the orders for alimony and expense money ? ■ •

' Again ; the ground upon which the wife is allowed alimony pendente lite is, that it being improper for her to cohabit with the husband duriug the suit, the court must see that- she has the means of living while the suit is in progress before it; and the ground upon which the wife is allowed money, with which" to defray her expenses of suit, is, that as the husband has all the money, and the wife none, she would be unable to litigate with her husband, unless by the compulsion of the court the husband supplied her with the requisite means. — Bishop on Mar. and D. 569, 571. Now, it seems to me a most singular proposition, that the alimony should be given to the wife to .enable her to live-during the -shit, and the expense-money to carry on the litigation, and yet that those allowances should be subject to revision upon appeal from the final decree. But my brethren think, that the appeal from the final decree brings up all the-order compensating the complainant’s counsel.

While there is a difference of opinion as to what is brought before us for revision by an appeal from the final decree, the court is unanimous in the opinion, that the order for temporary alimony and the expenses of the suit is revisable. This court revised such-an order in Ex parte King, (27 Ala. 387;) and such orders were the subject of frequent revision, on direct appeals from them, in the ecclesiastical court of England. — Rees v. Rees, 3 Phil. 387, 1 E. Ec. R. 418; Shelf on Mar. and D. 595. While the orders are revisable, the amount of the temporary alimony, depending upon the circumstances in life and social position of the parties, can not be subjected to any definite rule, but necessarily must be left, in a great degree, to the discretion of the chancellor — to the bom viri arbilrium; and consequently, it is the uniform practice, of revising tribunals to affirm the decree for the maintenance pending the suit, unless there is presented a-strong . and plain case of error. — Burr v. Burr, 7 Hill, 207; Shelf. on Mar. and D. 595. W e cannot say that the chancellor’s allowance here presents such a case. Nor do we think the chancellor erred in determining the amount of that allowance without the intervention of a reference, though a reference of the matter would have been the more usual and safe course. The temporary alimony is not restricted to a mere provision for the wife of that which is actually necessary to her living;, and consequently, it is not indispensable that the chancellor should have evidence of the cost of the wife’s board and clothing, before he pronounces upon the amount of the allowance. Hence, the order has been often made without evidence upon that point, and without a reference to the register. — Rogers’ Eccles. Law, 37; Wright v. Wright, 1 Edw. Ch. 62.

Tlie allowance of a solicitor’s fee stands upon a different footing. That must be restricted to the actual reasonable value of the services rendered, or to be rendered. The chancellor, therefore, erred in allowing the fees of the wife’s solicitors, without proof as to their proper amount, and without an inquiry through the register. The chancellor did not have before him the facts necessaiy to enable him to determine the amount of the fees. 2 Barb. Ch. Pr. 268.

Though it is the usual and better course for the temporary alimony to be made at au early stage of the cause, it may be made upon the final hearing. — Frankfort v. Frankfort, 3 Curteis, 715, 7 En. Ec. R, 558; Bishop on Mar. and D. § 589.

[8.] Upon tlio authority of numerous precedents in this court, we will render a judgment, affirming the decree of the chancellor in every respect, except as to the allowance of solicitor’s fees; and as to that matter alone, the decree of the court below is reversed, and the cause remanded. — Whitman v. Abernathy, 33 Ala. 154; Saltmarsh v. Smith, 32 ib. 404; Reese v. Kirk, 29 ib. 406 ; Pettit’s Adm’r v. Pettit’s Distributees, 32 ib. 288.

The appellant must pay the costs of the appeal.

STONE, J.

The majority of the court differ from the chiefjustice only on a single point, necessary to be noticed in this opinion.- As the whole court concur in the opinion, that the allowance made to Mrs. Jeter, for alimony, or support pendente lite, was not unreasonable; and, as a consequence, hold that, if that question be properly before us, we all unite in affirming the chancellor’s decree in that respect, — we need not, and do not, announce any opinion on the question, whether the appeal brings that question before us. Nor do we announce what would be our opinion, impending the litigation, and before final decree, the chancellor had ordered Mr. Jeter to pay to Mrs. Jeter’s next friend a sum of money to defray the expenses of litigation. That question is not presented by this record.

In the present ease, no order was made requiring' Mr. Jeter to pay the expenses of the suit, while the litigation was in progress. In the final decree, and only in the final decree, the chancellor ordered that Mr. Jeter should pay for legal services rendered by two law firms, to each firm a specific sum, as a fee in this ease. This was done without any reference to ascertain the amount; and the decrees were made directly in favor of the solicitors. There being a final decree in this cause, of which the order in question is a part, from which final decree an appeal is prosecuted, we think this question is properly before us. In thus holding, we think we are supported by many analogies in our system, and that we best pursue the harmonies of our law of appeals. For instance : In a suit in which a divorce is granted, the chancellor frequently makes a final order as to the custody of tbe children. So, in suits in which a receiver is appointed, compensation for the services of the receiver is generally decreed. Neither of these orders bears directly on the final decree rendered, and a reversal of them would not, in the one case, impair the force of the decree for divorce; and in the other, would not unsettle the principles of the account, while it might somewhat affect the sum for division. On an appeal from such final decrees, we apprehend no one would deny, that the ruling of the chancellor as to the custody of the children, arid in regard to the receiver’s compensation, would present a proper subject for revision. — Garner v. Prewitt, 32 Ala. 13.

The error of the chancellor on the question of solicit- or’s fees, has been pointed out by the chief-justice.

Note by Reporter. — On a subsequent day of the term, in response to an application for a rehearing by the appellant’s counsel, the following opinion was delivered: