Shotwell v. Shotwell

1 S. & M. 51

• Court: Mississippi Chancery Courts
• Decided: December 15, 1843
• Status: Published

Opinion

Chancellor.

In January, 1840, the complainant obtained a divorce from the bonds of matrimony, against the defendant, in the Circuit Court of Lowndes county, on the charge of adultery. That case proceeded simply for a divorce. The question as to the wife’s right to alimony was not in contest. The present bill is filed for the purpose of asserting her claim to alimony; and to this the defendant has demurred generally. Two grounds are taken in support of the demurrer. 1. That the power of this Court to decree alimony, in any case, depends altogether upon the provisions of the statute upon that subject; and that, by that statute, the power to make such decree belongs to the court that grants the divorce. 2. That alimony is an incident to, and dependent upon, the decree for a divorce ; and that, as no decree was made by the Circuit Court for alimony, when the divorce was decreed, a separate bill for that purpose cannot be maintained in this Court. These positions are so nearly the same, that an answer to one will dispose of both. The statute of this State provides that, when a divorce is decreed for adultery, the Court may make such order touching the alimony of the wife, or any allowance to be made her, as from the circumstances of the parties, and the nature of the case, may be fit, equitable, and just. And although I believe it has been usual in practice, to make such order in connection with the decree for a divorce, yet I cannot conceive that the mere omission to do so . can affect the wife’s right to such a provision, at a subsequent time, by a separate and distinct proceeding. Any other construction of the statute would place the rights of the wife under restrictions too arbitrary to comport with the generous policy of the law. The error of the opposite view, consists in supposing that a bill .for a divorce and a claim for alimony are identical, and necessarily constitute one proceeding, and that they are essentially united in the same decree ; whereas the right to alimony is a separate and distinct right resulting from the decree for a divorce, but not indentical with it. The wife’s right to a. provision in such cases, proceeds upon the moral and legal obligation of the husband to furnish her with a competent support, and cannot be justly made to depend upon the point of time at which she attempts to assert it. I find no such limitation in the statute, and I certainly,will not introduce any by way of construction. The right is founded in the very nature and legal incidents of the marriage contract, by which the husband not only possesses himself of the property of the wife, but obtains dominion over her person. Hence it is, that where the husband, by his cruelty or other misconduct, compels the wife to force herself from him, the courts will carry out this obligation by compelling him to set apart a portion of his estate for her support. I am then of opinion, that a separate suit, by bill or petition, may be maintained for alimony, after a decree for a divorce in which such claim was omitted, if there was no express act of the wife waiving her right thereto. This point seems to have been directly decided by the Supreme Court of Pennsylvania, in the case of M’Karraher v. M'Karraher (3 Yates, Rep. 56). It was held in that case, that the failure of the wife to claim alimony, when the sentence of divorce was rendered, was no bar to a future application for that purpose. The case of Julineau v. Julineau (2 Desaus. 45) is also an authority, showing that the decree for alimony is not necessarily an integral part of the decree for a divorce. I also infer, from some examination of the Ecclesiastical Reports of England, that a claim to alimony is not necessarily asserted, at the same time that a sentence of divorce is pronounced ; I find it is frequently, if not usually, made at a different time, and under a distinct proceeding. Such was the case in the suit of Cook v. Cook, 2 Phillimore, 40 ; 1 Eccle. Rep. 178 ; where a divorce was decreed in Nov. 1811, and proceedings instituted in March, 1812, for the recovery of alimony. The propriety of the proceeding does not appear to have been called in question on account of the lapse of time. Sir John Nicholl said it was usual to make alimony commence from the date of the sentence of separation, and he referred to the case of Taylor v. Taylor, where the sentence and decree for alimony passed on the same day; thus showing that it was not usual that both took place at the same time. I cannot doubt that the powers of this Court, as to decreeing alimony, are commensurate with those of the spiritual courts of England. If, then, a separate bill or petitiofi for alimony may be maintained, I can see no reason why it may not be brought in any court having competent jurisdiction, without regard to the court that granted the divorce. There is nothing in the nature of the proceeding which would limit it to the latter court. In England, the jurisdiction over divorces and alimony belongs exclusively to the ecclesiastical courts, and was never exercised by the Court of Chancery, except during the usurpation of Cromwell, when the spiritual courts were shut up. But by the constitution and laws of the State, jurisdiction is conferred equally upon the chancery and circuit courts ; and where one has not already taken jurisdiction, the other may do so. If these views be correct, neither of the grounds of demurrer are well taken. Let it be overruled, and the defendant ordered to answer in thirty days.