Edwards v. Edwards , 80 Ala. 97 ( 1885 )

STONE, C. J.

— We have carefully examined the voluminous testimony found in this record, and we are not able to affirm there is a “decided preponderance” against the conclusion reached by the chancellor. — Nooe v. Garner, 70 Ala. 443. The clearly established facts show a sad case of family alienation and discord, but much of the blame is chargeable to the complainant. — David v. David, 27 Ala. 222. The chancellor did not err in refusing to grant the divorce prayed for.

The question of alimony rests on different principles. “Pending a suit for divorce the court must make an allowance for the support of the wife out of the estate of the husband, suitable to his estate, and to the condition in life of the parties.” Code of 1876, § 2694. Under this statute, and the construction placed on it, it would seem the question of temporary alimony, or alimony or support pending the suit, is a matter not of discretion, but of right. — Jeter v. Jeter, 36 Ala. 391; Ex parte King, 27 Ala. 387; King v. King, 28 Ala. 315; Mims v. Mims, 33 Ala. 98; Ex parte Smith, 34 Ala. 455; Richardson v. Richardson, 4 Por. 467; s. c., 30 Amer. Dec. 538; North v. North, 43 Amer. Dec. 778; Methvin v. Methvin, 60 Amer. Dec. 664; Frith v. Frith, 63 Amer. Dec. 289; Pinckard v. Pinckard, 68 Amer. Dec. 481.

Since the separation the daughters, two in number, remained witli the mother, and one of them was sent to school. The only son has been with the father. The wife has a separate estate, in value nearly or quite equal to half the value of the husband’s estate. Ve make no allowance for attorney’s fees. That is not compulsory. Wo order and decree, however," that defendant shall pay to complainant the sum of two hundred dollars for her support pending the suit; and the chancellor will make any orders necessary for carrying this decree into effect.

After the present appeal was taken, a second petition was filed for alimony pending the appeal. This being a proceeding after the appeal, the chancellor’s ruling upon it is not before ns for consideration.

The costs in the court below will remain as decreed by the chancellor, except the costs on the petition for temporary alimony or support, which will be paid by the defendant. The costs of the appeal in this court will be paid by the appellee; and the costs of appeal in the court below will be paid, one-fourth by the appellee, and three-fourths by complainant’s next friend.

Reversed and rendered.