Shirey v. Hill

98 S.W. 731, 81 Ark. 137, 1906 Ark. LEXIS 460

• Court: Supreme Court of Arkansas
• Decided: December 17, 1906
• Status: Published

Opinions

Wood, J.,

(after stating the facts.) Alimony, in general terms, “is the allowance which a husband pays by order of court to his wife while living separate from him.” 2 Bishop, Marriage, Divorce and Separation, § § 1385-6.

A separate suit for alimony, under our statute, may be maintained, and is cognizable, only in a court of equity. Kirby’s Digest, § 2675; Wood v. Wood, 54 Ark. 172.

Mr. Bishop says: “Since parties may validly bargain to do whatever accords with their legal rights and duties, * * * if a husband and wife are living apart, he may * * * validly bind himself to render her a specific maintenance.” 2 Bishop, Marriage, Divorce and Separation, § 1261. In Harshberger v. Alger, 31 Gratt. 52 at page 60, the doctrine is announced that courts will generally uphold and enforce against the husband such conveyances and covenants as he may have made for the maintenance of his wife, provided the separation has actually taken place, or is contemplated as immediate, and the provision for the wife is made through the intervention of a trustee, and the parties have not subsequently come together again. Citing authorities.

The complaint, though not as fully and technically accurate as it should have been, nevertheless stated a cause of action for alimony.

Second. The court did not err in rendering a decree for the amount that had accrued under the contract at the time the decree was rendered, and the amount that should accrue, and in ordering that execution should issue for the separate monthly payments as they became due.

The complaint asked for “such equitable relief as the complainant was entitled to.” The chancery court evidently took jurisdiction of the cause as a suit for alimony, and treated the contract as the basis of the amount which should be allowed. This was correct. Appellant specified that sum in his contract. The statute provides that “the court may enforce the performance of any decree or order for alimony and maintenance by sequestration of the defendant’s property, or that of his securities, or by such other lawful ways and means as are according to the rules and practice of the court.” Kirby’s Digest, § 2682.

Mr. Bishop says: “In some oourts an execution, or series of executions, may be issued for the alimony ordered.” 2 Bishop, Marriage, Divorce and Separation, § 1094.

The court, having taken jurisdiction to enforce the contract between appellant and appellee as for alimony, was .expressly authorized by our statute to proceed in the manner indicated by its decree to enforce its decree. This- was in accord with, well-recognized methods of chancery procedure in other jurisdictions. See cases cited by Mr. Bishop under § 1094, supra. Another well-recognized method is by contempt proceeding. See Casteel v. Casteel, 38 Ark. 477,

Appellee’s demurrer to appellant’s answer was overruled except as to that part which alleged that appellee did not have a cause of action in equity. But appellant did not pretend to adduce proof to support the allegations of his answer. The allegations of the complaint, sufficient to entitle appellee to the relief sought and granted, were not denied, and they were moreover supported by the terms of the contract.

Finding no error, the decree is affirmed.