McGrady v. McGrady

Ellison, J. Plaintiff and defendant are husband and wife, and this action was instituted under the provisions of section 6856, Revised Statutes, 1889, by the plaintiff wife against defendant for maintenance. The result below was a judgment in favor of plaintiff for $200 for her'expense and support up to date of judgment, and $25 per month, thence on. Said monthly sum to .continue to be paid until the further, order of the court. Plaintiff and defendant resided on a farm of one hundred and sixty acres in Pettis county, and for a long period prior to their separation had not lived in harmony. They had four living children, the oldest eighteen years of age and the youngest (the only girl) eleven years old. The separation and discontinuance of support occurred by the plaintiff leaving the home, occasioned (as the trial court must have found) by the bad conduct of defendant. If defendant’s conduct was such as to render plaintiff»’s condition, as his wife, intolerable or unbearable at his house, she could leave the house and abandon ahorne so rendered unfit for her habitation without forfeiting her right to support or maintenance by him, or out of his property. Allen v. Allen, 29 N. H. 63. [675] The evidence shows that defendant was causelessly jealous of plaintiff. That he suspected her of infidelity to him, and that in consequence of such jealousy and suspicions he persecuted her to a degree scarcely endurable. In the imagination of defendant (and I think wholly imaginary) there was a man visiting plaintiff. This man, unseen and unnamed, would come upon the premises in the night time and manifest his presence by' making a disturbance among the chickens, by scratching on the house like a rat, or by getting on the roof of the house and scratching like a rat, or an owl. They did not sleep together, plaintiff sleeping in a separate room with the daughter. Defendant placed iron bars across the window of her room, either to keep her from getting out, or the man from getting in. He sat up of nights, armed, waiting and watching. He employed the boys to watch their mother, and to lay out after night to intercept the approach of this man who seemed to elude all vigilance. This, and much more of like nature, only differing in smallness of detail and conception, until finally he heard a rat scratching against the west end of the house. His description of this scene is as follows : Saturday or Sunday (the night the gun was fired) there was a rat scratching against the west end of the building, and I got up and took my gun in my bedroom, and I got up and picked up the gun and walked out, and when’ I got out of the bedroom there was a hammering on the iron bars I had on the window. If I had had one minute more he would have been my chicken. The next morning was Sunday. When I came in that night she was standing in the house in her night clothes, clapping her hands, and saying, ‘ Oh, my God, my God, what is this ? ’ I walked into my bedroom and left the gun there, and went to bed again. * * * “We searched the house pretty good after breakfast, but didn’t find anything. The next morning after the gun was fired off I had been out in the barn and [676] came in. She was standing in the door, or on the floor in the house. I asked, ‘ Where are you going ? ’ She said she was going to have this thing straightened up. ‘You are?’ said 1. ‘Yes,’ she said, ‘I am going.’ I said, ‘ There is no recourse on you ; I bought an outlet to the big road,’ and I asked her when she was coming back when she got a little way from the house, and she said I would know that when she did come back. She left from her own accord. I didn’t speak but two or three words ; that was all I spoke from that night. I never spoke to her until she came back on the twenty-ninth day of January. She left on the fifteenth or sixteenth of December. We kept house ourselves while she was gone, but a neighbor girl generally came and did the baking of bread, and did my washing and sewing. My little girl was at home ; she did a good deal of the work, and we all pitched in and helped. My oldest boy can do a good deal about the house. When she came back she asked me to get in, and I told her no, she could not get in ; she could go to the man that she was accommodating. ‘ Who was he ? ’ she says. I told her I did not know who he was. I told her I did not know who he was, but if I did know I would put a load in him, but I didn’t know who he was.” It appears thus that, notwithstanding this treatment, she returned in a few weeks, but defendant refused to receive her, or to permit her to enter the house. She has no independent or separate means of support, and has, without substantial fault on her part, been turned out of her home, not, I am persuaded, from a malicious and wanton purpose of defendant to cruelly treat or abuse her, but from an unreasonable and un'controllable jealousy, so firmly conceived in his imagination that it has destroyed the happiness, good temper and contentment of each. It is, however, insisted that the court’s allowance of maintenance is excessive, considering the age, health, situation and property of defendant. He was shown to [677] own one hundred and sixty acres of land, worth from $20 to $85 per acre; and to be possessed of $1,000 or $1,200 worth of personal property. He was fifty-eight, and she fifty-four, years old. Both are industrious, hard-working people, and the property, save some pension money hereafter referred to, is the result of their joint labor and frugality. As nothing was shown to the-contrary, we assume that plaintiff is in good health, and still able to work as she did when she lived with the defendant. Under these conditions is the allowance excessive % In our opinion, it is. In cases of this nature consideration should be given to the condition and situation in life of the parties — their mode and style of living; their wants and necessities as evidenced by their past life, up to the time of their separation. So, the husband’s financial ability should be heeded. Poverty will not,excuse him from the obligation to maintain his wife, yet such a condition should receive consideration in fixing upon a sum which he must pay. McGee v. McGee, 10 Ga. 477. The plaintiff has been accustomed to work and to live on a farm. She has performed labor without complaint during the period of her marriage. Her health and strength are good, and her age is not such as to disable her. Under such circumstances she should not be maintained in idleness at the expense of the husband. Brown v. Brown, 22 Mich. 242; Farley v. Farley, 30 Iowa, 353; Abbey v. Abbey, 32 Iowa, 575. We have, therefore, concluded to modify the judgment of monthly allowance by reducing it from $25 per month to $15 per month, which latter sum, in view of her health and strength, and that she will have no children to provide or care for, will be ample to keep her in, at least, as good a position and condition as she has heretofore enjoyed. It is further contended by defendant that, since a large portion of his property is the proceeds of [678] pension money paid Mm by the general government on account of injuries received in the late Civil War, such property should not be considered in estimating a sum for plaintiff’s maintenance; such pension, he contends, not being liable for any debt, or claim on any account. We are not inclined to give this favorable consideration. In'passing upon the husband’s excuse of non-ability to maintain his wife in the way she should be, under the circumstances surrounding her, his entire means and income, from whatever source, should be considered. Property of every description, which is the husband’s alone, and which is at his free disposal, should constitute a fund to be used by him for the necessary support of his family, notwithstanding it includes pension money. Hedrick v. Hedrick, 128 Ind. 522. Besides, the bounty of the government is not alone for the soldier receiving it. It is for his family as well, and is continued after his death to the widow and younger children. The judgment, modified as above suggested, will be affirmed, and the cause will be remanded for such modification. All concur.