Jones v. Jones , 233 Ala. 642 ( 1937 )

The assignments of error challenge the action of the trial court in sustaining the demurrer to the bill as amended.

The pleading had for its purpose separate support and maintenance, sought by the wife.

The statutory rights of a wife, applicable in proceedings for divorce, were the subject of discussion in Ex parte State ex rel. Tissier, 214 Ala. 219, 106 So. 866. Here, the suit is for alimony only, under the facts averred in paragraphs 3 and 4 of the bill as amended.

It is conceded that the husband has the right to select a domicile for himself and family, if he reasonably exercises that right. Henderson v. Henderson, 228 Ala. 438, 153 So. 646; Spafford v. Spafford, 199 Ala. 300, 74 So. 354, L.R.A. 1917D, 773.

There are general authorities to the effect that a wife may obtain an allowance for separate maintenance without divorce, if the facts justify a divorce. 30 C.J. page 1073, § 862. In Brady v. Brady, 144 Ala. 414, 39 So. 237, 239, it was held that in this state, in a suit where a divorce is not sought, the allowance of temporary alimony, or alimony pending the suit, may be granted; this being a matter, however, which rests in the sound discretion of the court. Ex parte State ex rel. Tissier, supra; Ex parte Williams, 223 Ala. 221, 135 So. 172. This allowance the court may make under its original jurisdiction. Tutwiler v. Tutwiler, 205 Ala. 283, 87 So. 852; Spafford v. Spafford, supra; 30 C.J. page 1071; Ex parte Allan,220 Ala. 482, 125 So. 612.

The instant pleading is sought to be distinguished from Whitman v. Whitman, 223 Ala. 557, 137 So. 666, wherein it was held that there must be an abandonment or separation before a bill for separate maintenance by the wife may be sustained. It was there declared: "We find no Alabama case where the wife was granted a separate support and allowance if living with her husband when the bill was filed. On the other hand, we find respectable decisions by other courts holding that a separation, at the time the bill is filed, is a condition precedent to relief unless there is a statute to the contrary." We have no statute to authorize a different rule.

The amended bill contains facts which are, in substance, as follows: That many years prior to the filing of the bill respondent ceased to live with the complainant as her husband; that since such time the complainant and the respondent "have not lived together as man and wife"; that complainant continues to reside under the same roof with the respondent, occupying a separate room or apartment from that of respondent; that complainant has not sufficient means to provide for her own support in a separate house, and respondent refuses to contribute to complainant's support, unless she continues to reside under the same roof with him; that complainant continues to so reside in the same house with respondent on account of her necessities and her inability to provide for her own separate support, but that complainant and respondent have not cohabited or lived together as man and wife since long before the bill was filed.

The effect of these averments, when construed most strongly against the complainant, merely is that she is living in the house of the husband, where she is maintained and supported by the husband; that there has been no actual abandonment or separation of the parties, so far as concerns the domicile, and no failure of support of the wife in such sense as that equitable cognizance may be taken thereof, as prayed. The instant case is differentiated in fact, but not in principle, from the Whitman Case, supra.

We think it unnecessary to further discuss the cases. However, in Glover v. Glover, 16 Ala. 440, it will be noted that the husband had abandoned the wife without a just cause, many English authorities are cited, and the right of the complainant wife to maintain her bill in this state against the husband who resided in the state of Tennessee upheld; the Alabama court having acquired jurisdiction of the person of the husband.

Hinds et al. v. Hinds, pro ami., 80 Ala. 225, was likewise an adjudication of a case of abandonment of the wife by the husband.

In the case of Brindley v. Brindley, 121 Ala. 429,25 So. 751, considered on last appeal, the wife had actually abandoned the husband without any legal excuse; this case is not of controlling effect here.

In Ex parte Allan, 220 Ala. 482, 125 So. 612, 614, the husband had abandoned the wife in Canada and come to this state, where she pursued him with her bill for separate maintenance. It was there concluded as to this, that, "The abandonment of which complainant in the original suit — the suit for maintenance — complained took place in Canada, but defendant now resides in this state, to which complainant has come for relief, and we have no doubt that the court of chancery of this state had jurisdiction to render the decree awarding separate maintenance." 220 Ala. 482, 484, 125 So. 612,614.

These cases are not of controlling effect here. A question of public policy is presented. We strictly conform to the rule as long construed and applied. See Atkinson v. Atkinson, ante, p. 125, 170 So. 198, touching upon the public policy of such a case.

This case is ruled by the decision in Whitman v. Whitman,223 Ala. 557, 137 So. 666. This rule we are not willing to recede from or qualify.

The decree of the circuit court is therefore affirmed.

Affirmed.

ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.

On Rehearing.