Schlom v. Schlom , 149 Miss. 111 ( 1928 )

^* Corpus Juris-Cyc. References: Divorce, 19CJ, p. 275, n. 87; Equity, 21CJ, p. 190, n. 75. The appellee obtained a divorce from the appellant, with an allowance of two hundred fifty dollars per month alimony for herself and children, and the custody of the four children of said marriage. Subsequently, one of the children, at the suggestion of the appellee, went to live with his father. It appears that the appellee had been sick, and suggested to the son that he could go to his father, if he so desired, and the son did go and live with his father, who filed a petition in the chancery court for a modification of the decree. Subsequently, the appellee wrote the appellant with reference to a daughter as follows: "From now on I want you to take care of Zelda and send her the money yourself." The daughter also wrote the appellant a letter stating that her mother had written her stating that she must leave college and take a business course, and go to work, and that she did not desire to leave college, and asked her father to send her share of the money direct to her. Appellant thereupon filed another petition to have the decree for alimony modified, setting up in the two petitions that he had complied with the order of the court by paying the amount required, but that he withheld fifty dollars for each of said children, and that he was out more than that amount of money in taking care of them. For some reason the court was not held at the return term, and the appellant continued to withhold fifty dollars for each of said children from the amount decreed to be paid, sending the wife the balance, one hundred fifty dollars, per month.

The appellant testified to both statements of facts, and then introduced his son, who testified that he went to live with his father because his mother told him he could do so if he thought best. The appellee was not represented by counsel in the court below, but, on cross-examination of the son, the following questions were propounded by her and the following answers given:

"Q. Son, wasn't it the reason I sent you to your father, I was sick and unable to care for you, wasn't that the cause, I thought best? A. You were up.

"Q. Wasn't I operated on and sick, and could not care for you, and told you I thought it best for you to go to your father — tell the truth, don't be afraid. A. I am not afraid to tell the truth. You were sick at one time, but up when you told me that.

"Q. I was sick and unable to care for four children and thought it was best and told you to go to your daddy. A. You cared for the others; you could have cared for me."

As stated, the appellee did not testify, and, on hearing the testimony showing substantially all the above, the court dismissed the petition for a modification.

It is stated in the argument and briefs that the chancellor did not act on the theory that the complainant came into court with clean hands. It will be noted that the decree was for a joint allowance for the wife and four children. It appears that Zelda, a daughter, was a young lady in college, and the son about fourteen years of age. There was one daughter between Zelda and the son and another child younger than the son. It appears from the evidence without dispute, and from the questions of Mrs. Schlom, that the son was placed with the father by her consent, and that she requested the father to send the daughter the money direct. It further appears, without dispute, that the appellant paid the full amount allowed by the decree for alimony, but did not pay the full amount to the wife. It is argued that the money belonged to the wife and was a vested right which could not be disturbed by a subsequent decree. We think this is a misconception of the case. The money did not belong to the wife entirely. It was paid to her to use for the support of herself and children, and, in addition to the money so allowed, she was allowed the use of the home, and the husband was required to keep all the taxes and insurance paid thereon.

It appears from these facts that the chancellor should have allowed some relief, and made some modification of the decree. That would not necessarily have meant that each one had a prorata of the allowance awarded, but the amount due by the husband for the support of the wife and four children was a gross sum in which each had an equity, and, when the wife consented for the son to go to his father and for the father to send the daughter her share of the money, this necessarily called for an equitable reduction of the amount of money paid to the wife, the exact amount to be determined from all the circumstances in the case. The maxim that he who comes into equity must come with clean hands is not applicable herein to prevent the relief prayed for. The husband properly filed his petition, and, if he misjudged the amount which ought to be abated, he could have an equity court determine that fact. We think it clear, under the facts and testimony, that there should have been some abatement of the allowance, and that the husband was not required to send the wife two hundred fifty dollars per month and also to spend an additional amount for the support of the children.

The judgment of the court below will be reversed, and the cause remanded for a new hearing.

Reversed and remanded.