Robinson v. Robinson , 112 Miss. 224 ( 1916 )

SteveNS, J.,.

delivered the opinion of the court.

The allowance of alimony is justified by the natural obligation of the husband, as the bread winner of the family, to support his wife. If there is no legal marriage of the parties, there is no legal obligation on the husband for this support. Reecl v. Reed’ 85 Miss. 126, 37 So. 642. The parties hereto were divorced in the year 1910, and are now in the eyes of the law strangers one to the other. The petition which appellant filed in the court below, and which prompted the allowance of the attorney’s fee complained of, was not a petition for a divorce, but one purely and simply for the custody of the children. It was the same issue that is frequently presented by habeas corpus. At the time it was presented, appellant had been freed of the primary moral and legal obligation to contribute to his wife’s support and, without a statute justifying it, the court had no authority to award solicitor’s fees in this case, and his ■ action in so doing constituted error. Not only was there an absence of those obligations imposed by the marriage ties, but appellee in her very motion shows that she has a separate estate derived from the husband as a part of the gross sum awarded as permanent alimony. Our court has expressly held that this constitutes “a settlement between the husband and the wife as to the extent of the husband’s duty to contribute to her maintenance and support,” and that the decree awarding a lump sum as permanent alimony “is final after the term at which it is rendered.” Guess v. Smith, 100 Miss. 457, 56 So. 166, Ann. Cas. 1914A, 300.

It may be that the circumstances of this case suggested to the learned chancellor that appellant should be chivalrous enough to employ counsel for both parties; that in again entering the open door of the court, he should be considerate enough of his former wife to pay the admission fee of both and in doing so to adopt the “pay-as-you-enter system.” We ourselves would promptly yield to this suggestion if there was any legal basis at all for it. But just why appellee should have thought of such a demand is a matter of speculation, unless her memory of former days and the marriage obligations that once existed gives a touch of reality to the familiar couplet:

“You may break, you may shatter the va.se if you will,

But the scent of the roses will hang round it still.”

Reversed and remanded.