William Phelan, Appellant, vs. Sarah Phelan, Appellee, 12 Fla. 449

WESTOOTT, J. delivered the opinion of the Court: Under the statutes regulating the subject, no divorce a viñado matrimonii can be granted unless it is made to appear that “the applicant has resided in the State of Florida for the space of two years prior to the term of-such application.” This fact should be alleged in the bill and established by proof. I John. Ch., 204; 1 4N. H., 381; 8 N. H., 162. The allegations of the bill are very indefinite xrpon this subject. It alleges that complainant remained from her home in Fernandina, but omits to state where she was or when she left.

It is-then stated that in August, 1864, she was carried to Jacksonville by order of Brig.-Gen. Birney, where sho was compelled to support herself and child, without stating how long she resided there or whether she was there until November, 1865. In November, 1865, it Is alleged that’sho removed to Fernandina, from whence, it is not distinctly stated. She must have resided in Florida from May, 1864, while she coidd consistently with the allegations of the bill have been residing in Georgia from May, 1865, to November, 1865. Nor does the bill disclose where she was from May, 1864, to August, 1864.

The allegations of the bill are therefore clearly insufficient in this respect. The bill must be so framed as to leave no room for construction or inference to the contrary. The apparent grounds upon which the divorce is sought are a wilful, obstinate and continued desertion for the term of a year, and the habitual indulgence of violent and ungovernable temper.” The bill alleges a marriage in Georgia in 1856. That in March, 1862, the defendant sent her into the interior of the State 2! out of the way of the Yankees;” that in August, 1864, she was brought to Jacksonville, by order of Brig.-Gen.

Birney (from whence if is not stated;) that in November, 1865, sho removed to Fernandina, (from whence it is not stated,) and that while in Jacksonville and in Fernandina sho has supported herself and -child without any assistance from the defendant. There is no expi’ess statement that her husband was not with her in ,1 acksonville or Fernandina. These facts alone, if established, do not constitute an actual desertion or an intention to desert for a period of one year before the month of May, 1866, the date of the filing of the bill.

The reasonable conclusion is that the wife was sent first from Savannah to the interior of the State with her own consent to avoid the troops of the United States, and that subseqontly she was carried to Jacksonville by them, from whence it does not appear. It is impossible to determino whore she was in May, 1805, or whether her husband was with her or not. Desertion cannot be inferred from the unaided fact of protracted absence, in a ease of this kind, and under these circumstances, where the wife left in the first place voluntarily and with the consent of both parties during armed contests.

The desertion begins at the time when the intention not to return, and the resolution to remain away is formed. There is no allegation here which fixes this period. In addition to these facts, there is a general charge of “ wilful desertion for more than one year.” This is not sufficient. The cause under the statute is “ wilful, obstinate, and continued desertion, for the term of a year.” The allegations of the bill are therefore not sufficient to warrant a decree upon this ground.

The other allegation in the bill upon which the decree for divorce is based is to the effect that the defendant “ habitually indulges in a wilful and ungovernable temper to such an extent that complainant cannot live with him in peace.” The ground of divorce under the statute is for the “ habitual indulgence of violent and ungovernable temper.” The bill should state expressly that the husband indulges in violent and ungovernable temper towards the wife. It is no cause of divorce that lie indulges in such temper towards others not in his family in her presence.

A right to divorce results to the wife under the statute-only when she is the object of tins temper, and the bill must so allege, and the facts should be stated as well as conclusions. 14 N. H., 381; 4 Wis., 135. It is thus seeh that this bill Is entirely insufficient. What is charged does not authorize a decree for divorce, nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleading and evidence. Story’s Eq. Pldg., Sec. 257 ; 7 Wheat., 522; 11 Peters, 229; 1 Bro. C. C., 94; 6 John., 543, 505.

The only remaining- question 'upon this branch of the subject, is, Does the decree pro confesso, admitting that it is regular, which perhaps it is not, cure these defects in the bill V , •A decree pro confesso results from a default in pleading. What its effect may be in other eases it is needless to inquire here, but defaults in cases of this character amount to but little. No principle is known which should make a default effective to authorize a decree upon a bill for divorce not alleging sufficient facts to justify the decree.

This jurisdiction in matters of divorce a vinculo matrimonii for causes subsequent to marriage, and without denying the validity of the marriage, is a special jurisdiction conferred by statute. No court in .England had this power before. 1858, and since then by statute, it is permitted only to a limited extent, and no such thing- as a divorce a vinculo was known at common law except for causes which made the marriage invalid in its commencement.

While the statutes of this State require that, the practice in this class of cases shall he as in other causes in chancery, it does not. give like effect to defaults or to decrees pro confesso. These defaults may he entered and decrees be had in conformity to the rules of chancery practice, but there is a great difference in their results, and it would be deplorable if such was not the ease. It was held in Johnson vs.

Johnson, 4 Wis., .135, that “ when the bill is so defective as to fail in setting out a legal cause for divorce, no amount of evidence nor the verdict of a jury will warrant a decree upon itand that “ a geueral charge of cruel and inhuman treatment is not sufficient when the facts and details specified as constituting the charge fall short of sustaining it.’’ 16 N. J., 391; Pinkney vs. Pinkney, 4 Iowa, 325; 27 Maine, 563; 2 Paige, 112. This is equally as material a consideration in this case as the omission to allege the required residence.

But we are not without express authority in the United States, where this practice of divorce a vinculo for causes subsequent to marriage has grownup under statutes, upon the precise question of the operation of a default and consequent decree pro confesso in these proceedings. In Pinkney vs. Pinkney, 4 Iowa, 324, the court held that a petition for divore should distinctly state the facts constituting the cause, and should show prima, facie that the complainant is the injured party, before a divorce is decreed by default.

In Illinois, where under the statute it was provided that in all cases for divorce, if the bill or petition be taken for confessed, the court may proceed to examine the witnesses and have a hearing, this matter was expressly decided and the operation of such a decree fixed. Trumbull, J., in Shillinger vs.

Shillinger, 14 Ill, 150, says, “ It is clear that a court has no authority to decree a divorce on a bill being taken for confessed, without proof to sustain its allegations; and in this respect a proceeding for divorce differs from an ordinary suit in chancery, for in the latter case it is discretionary with the court when a bill is taken for confessed to hear testimony or not in its support.

The court may refer the cause to a master, as in this instance, to take the proofs and report the facts, and the facts to justify granting the divorce must be proven to the court; and it would be erroneous to grant the decree, on taking the bill for confessed, without any evidence, and if, as in this case, the whole evidence on which the court acted is set out in the record, and it is insufficient to have warranted the decree, it will be reversed.” In this case, although the statute expressly conferred the power upon the chancellor to examine witnesses and proceed to a hearing, the court, after decree pro confesso upon a sufficient bill, examined upon appeal the entire record, and reversed the final decree for matters subsequent to the default,, although the chancellor had acted in strict conformity to the statute.

This is one of the many differences between divorce suits and other chancery oases,which has led most elementary writers to desígnate It as a suit mi generis ; and this, like many other of its peculiar incidents, arises from the fact that the public have an interest in these suits, and the duty of the court is to protect that interest even at the expense of the wishes of the parties themselves. We proceed to examine the other portions of the decree as distinct from the decree of divorce proper; and first, the matter of fees awarded the solicitor in behalf of the wife.

In 2 Paige, 454, it was held that no allowance for costs or alimony should be made to the wife, if it appears from the face of the bill that she can obtain no decree thereon. In 8 Wendell, 370, the same rule is announced. That portion of the decree awarding costs for the wife’s solicitor should be reversed.

The principal decree is reversed upon grounds attributable to the want of care in the solicitor in drafting the bill, and it should not be permitted that the husband’s estate should be subjected to all expenses of litigation, whether regular or irregular. 8 Wendell, 370. “ It might bo very gratifying to the cupidity of a captious solicitor, who should be more intent on making- money out of family dissensions than bringing their difficulties to a speedy adjustment, to try experiments in practice, and subject the husband’s estate to all expenses of litigation, whether regular or irregular, and no husband should be subjected to such legalized depredations.” 8 Wendell, 370.

These remarks I do not introduce from anything that appears in this particular case^ nor have I the least reason to attribute any such thing to the sol licitor in this cause. It is the language of a learned court, and it is inserted to show what great abuses might bo practiced under a contrary doctrine.

As a general rule, if the case made by the bill drawn by the attorney is not a good one, and that fact is plain, the husband should not be made to pay for such labor, even when the application for the order is made before final decree, nor should he be made to pay for any labor of a subsequent attorney who proceeds to a hearing upon such bill, especially where the wife fails upon an appeal. He should have amended the bill or asked leave to file a supplemental bill. 3 Ed. Chy., 387; 1 Hast., 471; 2 Bish., M. & Div., §406, 416. This allowance is not a matter of right in the wife.

It is acrcature of the ecclesiastical courts, the purpose of which is to aid the wife to have justice done when she is without means, and makes a prima faeie case in her pleadings; and is never aAvarded when the wife fails in her siút, and the making of the order for it is postponed to the hearing. The next subject is the matter of permanent alimony to the wife.

There appears to have been no decree for alimony during the suit, but a final decree for the sum of two thousand dollars for “ alimony and separate maintenance.” This it is presumed was intended to indicate permanent alimony, and it cannot be sustained for two reasons. Permanent alimony is not a. sum of money or a specific proportion of the husband’s estate given absolutely to the wife. It is a continuous allotment of sums payable at regular periods for her support from year to year. 5 Eng.

Ec., 126, 129; 7 Dana, 681; 4 Hen. & Mum, 507; 4 Rand., 662; 4 Green, Iowa, 26. • Not only is there error in this respect, but there is manifest error in another. The amount of alimony is not regulated by any absolute fixed rule; it is matter of discretion with the court, and that discretion is not arbitrary, but a judicial discretion, to be exercised upon an equitable view of all the circumstances of the particular case. 7 Hill., 207; 10 Ga., 477; 3 Phillim., 378; 22 Ill., 187. The actual income of the.husband appears from the cases to he as a general rule the preciso fact to he regarded. 2 Hag.

Con., 199, 201; 3 Hag. Ec., 472; 5 Eng. Ec., 186; 2 Phillim., 40. But this is not a fixed and absolute rule, and there are cir oumstances which vaiy it. Before an allotment of permanent alimony is made, the ability of the husband should be made to appear, as well as the other considerations which are to he estimated in connection with his faculties, in determining the amount. What is the testimony in this case ? The first witness states that he does not know Mr. Phelan’s circumstances. The next witness, a son of complainant, testifies that he seems to have a grocery and provision store, with some dry goods.

His circumstances, pecuniarily, seem to be easy. He is at the present time building a store, although I believe he is doing so in his married daughter’s name. The next witness says, Mr. Phelan seemed to be comfortable in his circumstances. He kept a store in Eernandina, and was building a store-house, which has since blown down. One says he has understood he owns railroad stock or bonds, but does not know the fact.

The master, upon this testimony, reports his conclusion to be, that William Phelan is nowpnerchandizing in Fcrnandina, and appears to be the owner of real estate in said city, and is believed by witnesses, from common report and from all appem'ances, to be in easy circumstances, the actual amount of means not being known definitely. This is not sufficient to arrive at any accurate conclusion. It amounts to but little except that defendant has a provision and grocery store.

Whether he has one thousand dollars income or twenty, is not disclosed, and there is nothing in reference to various other matters which should enter into the estimate. The cases of allotment of alimony where the husband was a merchant are numerous, and the general rule applicable could be readily applied. The testimony here is not sufficient to come to any conclusion which could, with reasonable certainty, be just either to the husband or wife.

There must and should be an intelligent basis for such an important order of this character, which provides in future a fund for the support of the past wife, and which levies upon the estate or faculties of the late husband an annual sum in discharge of his obligation. For the want of an intelligent basis upon which to make the order, the allotment of the sum of three hundred dollars per annum for the support and maintenance of the infant must also be reversed.

This court has decided that in all cases of divorce it is proper to grant alimony, “the right to decree alimony being held to be an incident to the power to grant divorces, (Chairs vs. Chairs, 10 Fla.;) and the 10th

section of our statute provides that when a divorce is granted “ on account of the parties being within the prohibited degrees, or for the cause of adultery, or extreme cruelty,” the court may in every case take such order touching the care and maintenance of the children as may be just. The divorce here sought is not for the grounds mentioned in that section, and the question arises whether, independent of statu, tory regulations, this matter can be considered in this case and in this form. But it is unnecessary to decide this point in this case.

It may not have been necessary to have passed upon any portion of this case except the bill, as its character required a reversal of the decree, but I have, for the benefit of both parties, examined the record, and pointed out such apparent errors as were plainly disclosed, and in order that such defects might be corrected if there was merit in the case, and it was prosecuted further. In this case, although the wife has failed in her suit, she should recover the statutory taxable costs. Courts will not ordinarily, if they have any discretion in the premises, decree these costs against a defeated wife.

The decree in such cases continues her disabilities as a femme coveri, and she should not bo encumbered with the responsibilities of a femme sole. 9 Dana, 52; 29 Ga., 281; 2 Paige, 454; 4 Porter, 479.

It is ordered, adjudged, and decreed, that the decree entered in this case be reversed, except so much of it as adjudges the taxable costs of the court against the defendant in the court below; that this cause be remanded, with leave to the appellee to dismiss her bill without prejudice, or to amend her bill, or file a supplemental bill in that court, as she may be advised, and for such further proceedings in accordance with this opinion as are conformable to the principles of equity.