Scoggins v. Scoggins

Ashe, J.

In an action for divorce where the wife applies for alimony out of the estate of her husband pendente lite, the court can look only to the complaint, and will make the allowance when the facts set forth in it are sufficient to warrant the judgment of divorce.

One of the requirements of the statute empowering the courts to decree a divorce either a vinculo matrimonii or a mensa et thoro, is that it should be stated in the affidavit of the plaintiff filed with the complaint, that the facts set forth in the complaint, as grounds for divorce, have existed to her knowledge at least six months prior to the filing thereof. Rut there is an exception to this requirement whenever it is averred that the husband is then removing or about removing his property from the state. In such a case, to *321 prevent her from being defeated of her alimony, the statute' allows her to file her complaint without regard to the time when the facts alleged as cause of divorce may have occurred. Bat. Rev., ch. 37, § 6.

Gaylord v. Gaylord, 4 Jones. Eq., 74.

In the 10th section of chapter 37 of Battle’s Revisal, it is provided that if any married woman shall .apply to a court for a divorce from the bonds of matrimony or from bed and board with her husband, and shall set forth in her' complaint such facts as, if true, will entitle her to the relief demanded, and it shall appear to such court, either in or out of term, by the affidavit of complainant or other proof, that she has not sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary and proper expenses thereof, the.judge may order her husband, to pay her such alimony during the pendency of the suit as shall appear to him just and proper, having regard to the circumstances of the parties.

The fact stated in the complaint that the defendant “is. trying to dispose of his property for the purpose of leaving the state, and that he has offered his land for sale, avowing his intention to leave the state,” brings this case within the exception, and the plaintiff may rely upon the facts set forth as having occurred within the six months before filing the complaint as grounds for the relief demanded therein. And while the facts set forth as existing more than six months before the filing of the complaint are too general and indefinite, we are of opinion that those alleged to have occurred about the last of January or the first of February, are sufficient, if true, to warrant a decree of divorce a mensa et thoro;

and the plaintiff having proved by the affidavit of Wade Hill that she has no means with which to support herself during the prosecution of her action and to defray the necessary and proper expenses thereof, we think that the law in this behalf has been fully complied with, and that *322 plaintiff is entitled to alimony. We are further of the opinion that it was perfectly competent for His Honor to .dispose of the children of the marriage as he did.

.No Error. .Affirmed.