JAN. TERM, 1857. BAUMAN IT, BAUMAN. erimination in the statute (Dig. eh. 58,) between divorces a men= el thoro and a vineulo matrimonii; and the wife is entitled to alimony both pendente We and permanent, on either kind of divorce. The section of the statute allowing alterations to be made in whatever provision might have been made touching the alimony allowed the wife, is applicable to divorces from the bonds of matrimony as well as from bed and board. In the exercise of jurisdiction of matters of divorce the chancery courts ought to employ the same rules of law which the ecclesiastical courts do, except when they are unsuited to oar courts, or in conflict with constitutional or statutory provisions, or the general spirit of our laws. A wile who has obtained a decree for divorce cannot by bill, or a proceeding in the nature of a bill of review, procure an alterution in the original decree on the ground that any allowances therein made her were inadequate. Her remedy was by appeal from the original decree. A court of chancery in estimating the allowance to be made the wife, pendente lite, on a bill for divorce, will take into consideration her expenses to be incurred during the progress of the suit; and where an allowance has been made her, it will be presumed that her counsel's fee was considered in fixing the amount. A summary application to the court is sufficient, under the provisions of the statute for enforcing decrees in such cases, to afford the wife relief where her allowance is in arrears, without a bill for that purpose. - Appeal from the Circuit Court of Pu-laski County in Chancery. TI ON. WILLIAM H. FEILD, Cir- cuit Judge. Pike & Cummins, for the appellant. S. H. Hempstead, for the appellee. *Scola. , J. This cause was [*322 brought here by appeal from the chancery side of the Pulaski circuit court. The bill was filed the 29th day of July, 1852. It recited that, on the 19th of September, 1849, the appellant filed her' bill for divorce, alimony and other relief against her then husband, the appellee. That afterwards, she filed BAUMAN an amended and supplemental bill, V. bringing in another party, to whom BAUMAN. the husband had made fraudulent con-Ia deems toe divorce, and the orders t be made veyances of his property to defeat her tomb*" the ewe et the children, and the alimony suit, and to have a receiver appointed aed tbe leehelownee el the wife, there is no Ws-to take charge of the property. That 86 Rep.
BAUMAN V. BAUMAN. VOL. 18 service was had. That the appellee property, and out of the proceeds of the answered, and filed a cross-bill, which sale and rents pay costs, taxes, and nec-was answered, and issue formed. That essary repairs, as well as said allow-the supplemental bill was also an-ances, and the future amounts to ac-swered, and issues formed. That upon crue for the support of the child, and reference to the master, the llth Au-for the alimony decreed—the said sup-gust, 1851, to ascertain the value of the port in monthly payments, and the ali-appellee's possessions, he reported that mony in quarteily. he had improved property in the city 7th. That the lien so fixed might be of Little Rock, valued at $3,500—un-discharged, and the property restored imProved lots, valued at $1,100— to the possession of the appellee, upon household furniture, valued at $197.78, his giving bond and approved security and cash in hand to the amoutt of to make the payments according to the $5,000. That there was then due the decree. appellant, on account of alimony pen-It is further alleged that the bond dente lite, $43.75; and that from the let had never been given or offered, and of January, 1851, she had supported that the appellee had absconded be-Edwin, the minor son of the parties, at yond the limits of the State with his an expense of $75, up to the time of the money. That the real estate still re-report. That the causes upon the bills mains in the bands of the receiver. and cross-bill were the same day heard That he had sold the personal property and determined, and the court de-for $180.18 net, .and had managed the creed real estate to the best advantage, ex-3239 *1st. A dismissal of the cross-pending of the proceeds only what was till. necessary for taxes and repairs, and 2d. That the bonds of matrimony that on the 17th July, 1852, he had filed should be absolutely dissolved. his report, which had been confirmed, 3d. That the conveyances of prop-whereby it appears that there was due erty made by appellee to Lincoln, her, up to that date, for the support should be canceled, and the titles of her son and for her ali-thereof re-invest in the appellee. mony , , $163.33, besides interest, while 4th. That appellee should pay ap-*there was a balance in the re- [*324 pellaat the $43.75, balance of alimony ceiver's hands of only $15.92, which pendente lite; also, the $75 already in-was covered by demands upon the curred for support of the child; the property. That the income of the further sum of $150 per annum for the property was insufficient to pay its further support of the child, so long as necessary expenses, and the sums com-he should remain in the charge and ing to her under the decree, and control of the appellant; and that from that only by a sale of the property that day the appellee should also pay could she ever be paid. That ever her every year during her natural life since the decree she had entirely sup-$250, in quarterly payments, with in-ported her son out of her own means. terest at 6 per cent. on all such not That the allowance made to her for paid at maturity. that purpose was meager in the ex-5th. That all of said sums should be treme, and as she increases in age will created a lien upon the whole property he less and less sufficient to educate of appellee. and bring him up. That extraordi-6th. That a receiver, Hutchings, be nary expenses, then recently incurred appointed to take charge of the prop-by his severe illness, ought to be al-erty and manage it; sell the personal lowed out of the property in question.
JAN. TERM, 1857. BAUMAN v. BAUMAN. That the allowance to her by the de- mind has a tendency to go. Such a cree was equally meagre, barely fur- santiment, nowever, may be greatly nishing subsistence, if promptly paid, excused when the obvious mischiefs leaving her wholly without means of are considered, which must inevitably giving her counsel compensation for ensue upon the wearing of the matri-their services and prosecuting and de- monial obligation loosely. And yet, fer.ding the aforesaid suits, as well as common sense could but revolt at com-this one, amounting in all, as reason- pelling a woman, clear of fault, to co-ably she supposed, to $300, which she habit with a man who might be seek-submits and insists is a just charge ing her life, or was openly living in against the appellee, who ought to be adultery with another woman. Nor compelled to pay the same out of the could such a wife be without just sym-property now in the hands of the re- pathy, who had been basely deserted ceiver: concluding with prayer that the by her husband, and left to her daily decree ne carried into effect and full toils for the support of herself and her execution, and to that end that said lawful offspring. For the latter ill, real estate be sold: that out of the pro- this well-grounded sympat hy produced ceeds, in lieu of said allowances, a the very inadequate remedy of a suit gross sum be paid to her equal to the for the restitution of conjugal rights. annuities: also, that reasonable attor- For the former, the still more inade-ney's fees, as well as the expenses in- quate one of a divorce a mensa et thorq curred in the sickness of her son, be —a compromise, a sensible writer says, paid out of said proceeds; and for gen "between good sense and Rood doc-eral relief. trine, which is but a demoralizing Upon proof of publication, a decree mock-remedy for matrimonial ills :" pro confesso was taken, on the 9th of and which Lord Stowell condemns, be-July, 1853, and upon reference to the cause it "casts out the parties in the master for that purpose, he reported, undefined and dangerous character of on the 12th of December following, a wife witheut a husband, and a hus-that a reasonable allowance for attor- band without a wife :" and which ney's fees in the former suits would be Judge Swift says, "places them in a $300, and in the case now before the situation, where there is an irresistible court $50. temptation to the commission of adul-On the 8th February, 1854, the court tery, unless they possess more frigidity took up the case, and holding that the or more virtue, than usually falls to appellant was not entitled to the relief the lot of human beings ;" and in the prayed, dismissed her bill, and she ap- language of Mr. Bancroft, "punishes pealed. the innocent more than the guilty." In the various provisions of our stat- So early as the reign of Edward VI ute, there is great blending of the two of England, the evils of this extreme kinds of divorce—a mensa et thoro and sentiment, and the inadequacy of these a vincuto matrimonii, which, in the remedies were felt ; and a cmnmission English law, were quite distinct. of ecclesiastics appointed to enquire Perhaps, such may be the legiti- into the subject, reported to the crown, mate .1 re . sult of the wear of public as the result of their deliberations, the 325 *sentiment, enlightened by the opinion that "in cases of adultery, ma-experience of centuries. That all mar- licious desertion, long abrience, or riages, lawfully entered into, should capital enmities, the marriage should be indissoluble, was perhaps, one of be dissolved, with liberty to the in-the extremes to which the human jured party to marry again ; and that
BAUMAN V. BAUMAN. VOL. 18 the remedy of divorce a mensa et thoro this to the final separation, in the hope should be entirely abrogated and done of reformation and ultimate reconcili-away." ation. The causes enumerated in our But the changes thus proposed were statute (Dig., ch. 58, sec. 1), which not adopted ; it is said, however, "not authorize the one kind of divorce, from any want of confidence in their equally authorize the other ; and they, 326 C ] utility, but *in consequence of in the aggregate, are apparently broad a series of disasters, the principal one enough not only to cover the ground of which was the death of the King." of the ecclesiastical suit for the resti-(Bishop on Mar. and Div., sec. 278.) tution of conjugal rights—which seems In that country, proverbial for cautious never to have been used in any of the legislation, the law on the subject has States 7 -but also the whole of that upon not since been materially changed. which divorces from bed and board And the result is said to be, that "sec- were granted ; and indeed goes ond marriages without divorce, and boyond both ; because, as was adulteries and the birth of illegitimate held in Rose v. Rose, 9 Ark. 507, children are of every day occurrence, the fifth cause of divorce specified and that the crime of polygamy is *in our statute gives to our [*327 winked at, although a felony upon the courts a broader jurisdiction than that statute book." (Id. sec. 285.) It is exercised by the ecclesiastical courts true that divorces from the bond of for legal cruelty: since "the intolerable q natrimony are sometimes had in that condition contemplated by the statute % country, on application to Parliament; need not go the full extent of rendering but iu rare instances only, and atenor- it impossible to discharge the duties of mous expenses—some three or more the married life, as legal cruelty did in thousand dollars—quite beyond the contemplation of law: but to the extent ability of the mass of the people. only of rendering it improper, for rea-The effect in most of the States of sons which the public wisdom approves, this Union has been to lessen these to require or compel the performance evils, by removing some of the diffi- of those duties, under such continuous, culties in the way of procuring di- extreme and unmerited suffering. " vorces from the bonds of matrimony. Id. p. 516, 517. The legislation, however, has been ex- But it is not only in the section of tremely various, the laws of scarcely our statute above cited, that these two two States being precisely alike. "In kinds of divorces are blended; in all the most of them, judicial divorces from others, they are so; except that in the the bonds of matrimony are allowed second section relating to the legiti-for adultery, and in many of them, for macy of children, where divorces from a considerable number of other causes; the bounds of matrimony must neces-while divorces from bed and board are sarily be implied ; and iu the 6th and allowed in a portion of them, and in 13th sections that kind of divorce is ex-another portion, they are unknown." pressly referred to—the one section re-Id. sec. 279. quiring twelve months residence withIn thls State, so thoroughly have in this State, unless the injury com-these barriers to divorce from the plained of was committed here, as a bonds of matrimony been removed by pre-requisite for the filing of the bill; legislation, that but little scope is left and the other re-vesting in the wife all for divorces from bed and board, save the property, undisposed of, she may only in the option of a party, who, have brought into the marriage. In proceeding for redress, might prefer all the provisions touching the proceed-
JAN. TEEM, 1857. BAUMAN V. BAUMAN. Ings to be had, with the exception just mium for that kind of divorces, which, pointed out, and relating to the decree as has been seen, it was the policy of to be rendered, and the orders to be the general course of legislation on this made touching the care of the chil- subject to diminish; while, at the same dren, and the alimony and mainte- time, it would turn over to the charity nonce of the wife, both pendente lite of friends, or "turn out to prostitution and permanent, there is no discrimina- and starvation" every woman di-tion in the language employed. Hence, vorced from the bonds of matrimony, according to rules of construction of who had brought no property in the common application, the Legislature marriage, or whose property may have must be understood as intending to dis- been wasted by her husband, although criminate between these two kinds of his own might remain. Besides, it divorce, no farther than they have ex- would be in the face of the general un-pressed in the language of the act, or derstanding in this State, as shown by is necessarily to be implied therefrom the general course in the courts for. when considered in reference to the many years past. We conclude, there-subject matter, fore, that under our laws the wife is And if we:leave the letter, and go entitled to alimony, both pendente lite. into the spirit of the law, the light and permanent, as well when divorced thrown upon our path by the history of from the bonds of matrimony, as from this matter, at which we have rapidly bed and board. glanced above, and the course of legis- It has been suggested, however, that lation, both in England and in the the 12th section of the act which au-greater number of the sister States, our thorizes "the court, upon application or conclusion will not be different, either party, to make such alterations,. In England it was by no means unu- from time to time, as to the allowance-sual for Parliament to require the hus- of alimony and maintenance, as may band to make a settlement upon his be proper" ought to be held as apply-328jl wife, as a *condition of the leg- ing exclusively to divorce from bed and' islative divorce from the bonds of mat- board: inasmuch as, when the parties rimony(2 Bright's Husb. and Wife, sec. are divorced a vinculo, whatever hung 15, p. 368). And in many of the States upon the vinculum thus snapped, ought either alimony, or something in the to fall with it. It doubtless was the name of alimony, although differing iu theory of alimony, as that provision its legal nature, as known in the eccile- was administered in the spiritual siastical law—as a fair division of the courts, that the wife received it as wife, property in specie—is allowed to be de- and that it was from the husband creed to the wife upon the dissolution as such ; and that it ended of the bonds of matrimony. And in when the relation of husband others of the States, in addition to ali- and wife ceased. But in this mony, the wife is allowed, as in this *respect, the provision made [53'29 State, whatever property, remaining for the wife by the statute, on the di-uudisposed of at the filing of the bill, vorce a vincula, although under the she may have brought into the mar- name of alimony, is different in its na-riage. ture ; essentially, however, its nature is And the practical effect of constru- the same, because, it is still a inainte-ing the several sections, relating to per- mince for her, growing out of the obli-manent alimony and maintenance, to gations of the marriage, which the Leg-apply exclusively to divorces from bed islature has allowed to be dissolved on and board, would be, to offer a pre- this condition. Or, perhaps more ac-
BAUMAN N r. BAUMAN. VOL. 18 curately to speak, the Legislature has the husband, that Chancellor Kent permitted the marriage status of the *inclined to the opinion, on the [*330 party to be annulled by a judicial sen- statute of New York, which so far as tence, upon the condition annexed, cited by him, does not appear so broad that so much of the contrict, out of and distinct as ours, that it would be which it grew, as shall secure the wife in the power and discretion of t.he the maintenance provided, shall re- court to vary the annual allowance main in force. The power of the legis- thereafter, if the future circumstances lature to do this cannot be questioned, of the parties should dictate such a although the particular mode of secur- course. In that case, it appeared from ing this maintenance may be objected the report of the master that the ag-to as inconvenient. It was a matter, gregate value of the real and personal however, of legislative discretion, estate of the defendant was $4, F;50 ; of which, in different States of the Un- which all except $800 was real estate, ion, has been exerted in the adoption and that the joint annual product of of various modes for arriving at sub- both was $325. Upon this state of facts stantially the same thing—the support the chancellor proceeded to remark ; and maintenance of the divorced wife. "It appears to me that in this case, an In some of the States a reasonable pro- allowance of one hundred dollars a portion of the husband's property is year would not be unreasonable, and given to the wife, and the matter ends. not more than sufficient to render the In others, au annuity is fixed, which aged plaintiff comfortable : and per-is not afterwards subject to he changed. haps it may be in the power and in In this State, however, as in some oth- the discretion of the court to vary al-ers, oui Legislature, in analogy, to the lowance hereafter, if future circum-alimony of the spiritual courts, have stances, in relation to the parties, or thought proper to allow alterations, to either of them, should dictate such a be made in the sound discretion of the course ; for the statute speaks of such court, in whatever provision might maintenance or allowance as to the have been before made touching the court shall "from time to time seem alimony allowed the wife, upon the just and reasonable." He accordingly application of either party. At least, decreed that sum "to be paid to the such seems very plainly expressed in plaintiff during her natural life, or un-the section of the statute in question; til further order of the court ; " and and it would seem to be going a great provided in the decretal order "that ways to hold this section as applicable either party be at liberty to apply, to divorces from bed and board only, upon a future change of circumstances unless all the other sections relating in the parties, or either of them, for to alimony, were so held also ; and we such variation or modification of this have seen the difficulties of so holding order, touching the said allowance, as as to them. their future circumstances may dictate It would seem to be better for the to be just." Legislature to interpose, if inconven- With the understanding as to the iences are too great, or abuses or other law, we proceed to an examination of evils are likely to arise fron y this state the merits of the case presented ; pre-of the law. mising, however, that in the exercise It appears from the case of Miller v. of jurisdiction of matters of this sort, Miller, 6th Johnson's C.A. Cases, p. 91, the chancery courts ought to employ where a divorce a vineulo the same rules of law which the ec-was decreed for adultery on the part of -clesiusticaLscnirts do, except in so far
JAN. TERM, 1857. BAUMAN V. BAUMAN. US they be found unsuited to our courts, ground to impeach it; and, therefore, .or in conflict with specific, constitu-in that aspect, has been already re-tional or statutory provisions, or the sponded to. It is to he further re-general spirit of our laws. Bishop on marked, however, as to that matter, Divorce and Marriage, sec. 21, p. 18. that in the usual course, it is consid-I. In so far as the bill seeks any al-ered in fixing the amount of alimony teration in the original decree, upon pendente lite, and embraced therein; or 'the ground that any of the allow-else is, in terms, allowed in addition •nces therein made were meager and thereto, as money to defray the ex-inadequate ; it is clear enough that penses of the suit or defense. The bill no foundation is thereby laid for before us is silent as to whether or not, any relief. Because, if there was in the original suit, this was done in 331] *any ground for that complaint, either mode, other wise than by dubious the complainant ought to have ap-inference. What amount of alimony pealed. Such decrees are doubtless pendente lite was allowed is not stated. within our statute regulating appeals. It does appear, however, that at the And having failed to seek that remedy time of the final decree there was "a there can be no rational pretense, in balance of $ 13.75," which was decreed the allegations of this bill, that any to be paid, and as the court below must foundation is laid for relief on that be presumed to have done its duty in ground by any proceeding in the nature this particular, the law must presume of a bill of review. —and especially so in the absence of II. It is equally clear that no foun-any direct allegation to the*con- [*332 dation is laid for any such alteration, trary—that the attorney's fees were upon the improved faculties of the de-considered in fixing the amount of al-fendant, for no such improvement imony pendente lite. For aught that ap-since the decree is alleged. On this pears in the bill to the contrary, the point, Doctor Lushington, in giving court might have done this, and the Judgment in a case before him in the complainant received the money, and ecclesiastical court, observed: "Where did not pay her lawyer. there is a material alteration of circum-In the case of Fischli v. Fischli, 1 stances, a change in the rate of alimo-Black!. Rep. 360, the court in Indiana ny may be made. If the faculties are considered that the court in Kentucky improved, the wife's allowance ought had already passed upon the subject to te increased; and if the husband is matter upon which the bill before them tapsus facultibus, the wife's allowance sought adjudication, under circum-ought to be reduced. Applications of stances more favorable to the com-this sort are of rare occurrence. I only plainant than in the case before us. remember two instances where applica-The case was, that a wife had obtained tion g of either kind have been success-a decree for a divorce with an allow-ful, the case Foulkes v. _Fowlkes, for an owance for alimony of a certain sum of Increase, and e x v. Cox, tor a reduc-money, and the use for life of one-third tion. Applications to change the of her husbaud's real estate within the amount of alimony once fairly settled, State. And upon allegations that the ought, evidently, to be carefully scru-avails of that decree, after paying the tinized." expenses of litigation, were insufficient III. With regard to the attorney's for her comfortablesupport, she sought fees—that is alleged in the bill as show-from the courts of Indiana a further ing the inadequavy of the allowances decree for one-third part for life of her made by the decree, and upon that husband's lands in that State. The
VoL. 18 courts refused all relief; putting their unfit for that duty. The decree, so fat judgment upon the ground that it was as it is shown, does not give the cus-to be considered that these Indiana tody of the child to his mother ex-lands had been taken into account by elusively, but simply allows her $150 the Kentucky court, when estimating per annum for his support during the the amount of alimony; although they period he may remain in her charge. conceded that the Kentucky court If these terms, which really seem rea-could not have controlled the lands of sonably enough, are onerous, the corn-the defendant situate in Indiana; and plainant need not embarrass herself by although it appeared that a majority of keeping him at all.' the court of appeals in Kentucky had V. Nothing remains in the bill hav-decided that the division of the real es-ing any approach to equity, ex-tate was to Le confined to the State of cept that, at the end of not quite one Kentucky, from which one of the Ken-year from the rendition of the decree, tucky judges dissented, being of opinion the sum of $163.33, besides interest, that the real estate in Indiana should remains unpaid to the complainant, af be taken into the estimate also. The the aggregate of all the allowances Indiana court saying: "A sufficient part made to her, for which under the de-of the husband's property lay in Ken-cree she has a lien upon the property tucky to constitute an adequate proof the defendant, as well as for such vision for the wife, and the court, with sum as may in the future fall due to a view to all the property, might have her. given a proper proportion to the wife There was no necessity for a bill for and allotted her that portion in Ken-the redress of this grievance ; a sum-tucky;" and applying the principle that mary application to the court was suf-when a matter has been finally deter-ficient under the ample provisions of mined by a competent tribunal, it the statute for enforcing such decrees ought to be considered at rest, say Finding no error in the record the that, "that principle not only em-decree rendered in the court below will braced what actually was determined, be affirmed. but also extends to every matter which Cited :-19-422. 3334 9 *the parties might have litigated in the case. 5 Bac. 439, and authorities 1. Only the court which granted the dtvoree there cited." can grant alimony. The wife remarrying terra-nates her rights to alimony even after the death ol• IV. With regard to the allegations the second husband. Bowman v. Worthington, 2¢ in reference to the allowance made to 522. An appeal lies from the order granting the complainant for the support of the Hecht v. Hecht, 29-92. Wife must make some showing of merit. Countz v. Countz, 30-73. child, there is no foundation laid for any relief. The bill does not state hisage, and this had not increased a full year from the decree until the filing of this bill. If the allowance for this support -was inadequate, the complainant need not have undertaken it at all. The father was liable at law for necessaries for him. It does not appear but that the father would have taken him and reared him up, if the mother had consented. Nor does it appear in any -way that the father was unwilling or
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.