Cuny v. Cuny

O’NIELL, J. The defendant appeals from a judgment allowing bis wife $12.50 a week for alimony during tbe pendency of her suit for separation. The demand for a judgment of separation, preliminary to an absolute divorce, is founded upon allegations of cruel treatment on the part of the husband, making it intolerable for the plaintiff to remain in the house where her husband insists she shall live with him. In answer to the rule for alimony, defendant adopted his answer to the suit for sepa-. ration; that is, he denied that tbe plaintiff had been treated cruelly or unkindly, and insisted that she should return to the home of his parents, where he had taken her to live with him. The record does not disclose that either party asked for a prompt trial of the suit for separation. [1] Appellant contends that his answer to the suit and to the rule for alimony, in which he says that he is willing that his wife shall return and live with him in the home of his parents, and that she will be treated kindly there, puts an end to any grievance she may have had, and shows that she' has no cause or right of action now for separation. In his argument and in the brief filed in this court appellant’s attorney takes the view that the cause of action alleged by plaintiff is that her husband abandoned her by refusing to provide a matrimonial domicile apart from that of bis parents, with whom plaintiff was not willing to live. But that is not the cause [713] of action alleged in plaintiff’s petition. Tiie issue presented by the pleadings in tiie suit for separation is whether the plaintiff was treated cruelly, and whether the treatment she received was such as to make it intolerable for her to remain in the house where her husband insists upon her living with him. That issue is not presented for decision in the rule for alimony. It can only be decided upon trial of the suit for separation. Until it is decided the plaintiff is entitled to alimony. [2] The marital obligation imposed by article 120 of the .Civil Code, that the wife is bound to live with her husband and to follow him wherever he chooses to reside, must be construed with reference to the obligations of the husband, and with reference to the right of the wife to put an end to the matrimonial relation for any one of the causes specified in article 138 of the Codé. [3] Defendant did not demand a reduction of the amount of alimony allowed; a matter which, pendente lite, is within the control of the court having Jurisdiction of the suit for separation. The judgment appealed from is affirmed at appellant’s cost.