This is an action filed by Ernest L. Ryan (appellee) in the Circuit Court of Blount County, in Equity, against his former wife Elsie Roberts Ryan (appellant), in which the appellee seeks to set off an alleged indebtedness of $12,500 against the decree of the Circuit Court of Blount County for alimony rendered against the appellee on October 5, 1954. The allegations of the bill show that the alleged indebtedness due by Elsie Roberts Ryan was due at the time the decree for alimony was rendered.
The appellant demurred to the bill of complaint and the court overruled the demurrer. It is from this ruling that the appellant has brought this appeal.
The allegations of the bill show that a copy of the decree of divorce is attached to the bill of complaint and marked Exhibit A and made a part thereof. The decree shows that Elsie Roberts Ryan was granted a divorce from her husband and in the decree was allowed the sum of $7,000 as permanent alimony, "one-half of said amount to be paid within sixty (60) days from date of the decree and the remainder to be paid on or before May 4, 1955." The bill in the instant case was filed August 4, 1959. She was also allowed in the decree $200 per month temporary alimony pending the appeal of the case to the Supreme Court of Alabama and attorney's fees. The decree also decreed a resulting trust in the amount of $3,000 in favor of Elsie Roberts Ryan on certain real estate described in the decree.
The prayer of the bill is to set off the $12,500 claimed by Ernest L. Ryan against the indebtedness due by Ernest L. Ryan by the terms of the decree in the former case of Elsie Roberts Ryan v. Ernest L. Ryan, respondent, in the Circuit Court of Blount County, Alabama, in Equity. Attached to the instant bill and made a part thereof is also Exhibit B, which is a notice of the sale of the lands described in the bill of complaint in which the register was undertaking to collect the amount of the decree in the former case.
To summarize the situation, it will be seen from the bill of complaint and the demurrer thereto, that the bill of complaint seeks to set off an alleged indebtedness due on account for money had and received by the appellant against the amount of alimony and attorney's fees awarded in the decree.
I. Under the provisions of § 31, Title 34, Code of 1940, where a divorce decree is rendered and alimony is awarded to the wife, this allowance is for the maintenance of the wife. The language of the code section is "for her maintenance."
In the case of Le Maistre v. Baker, 268 Ala. 295, 105 So.2d 867, 870, this court quoted the following language from the Supreme Court of Virginia in the case of Eaton v. Davis, 176 Va. 330, 10 S.E.2d 893, "Alimony has as its sole object the support of the wife, and is not to be considered a property settlement upon a dissolution of the marriage."
As further showing the application of this definition or rule we quote further from Le Maistre v. Baker, supra,
See also Heaton v. Davis, 216 Ala. 197, 112 So. 756.
We add that the allowance of temporary alimony pending the suit and for attorney's fees for services of attorneys representing the wife in a divorce case, are both based on the same principle as permanent alimony and the granting of such temporary alimony and attorney's fees is controlled by the sound discretionary power of the court in each particular case, according to the circumstances disclosed by the pleadings and proof. Ex parte Austin, 245 Ala. 22, 15 So.2d 710.
With reference to the allowance of attorney's fees, we quote in substance from Johnson v. Johnson, 195 Ala. 641, 71 So. 415, as follows:
In the case of Attaway v. Attaway, 193 Ga. 51, 17 S.E.2d Ga. 72, the court said:
In the case of Keck v. Keck, 219 Cal. 316, 26 P.2d 300, 301, the wife was the guardian of the husband and on his restoration to sanity and the final settlement of her guardianship, a judgment was rendered against the wife in favor of the husband for money belonging to the husband's estate for which she was liable to him. Later the wife recovered a decree for alimony in a divorce case against the husband and nothing was mentioned in the divorce and alimony case about the judgment which the husband held against the wife. The court denied the husband the right to set off this judgment against a decree for alimony in the case and in this connection said:
In the case of Zaragoza v. Zaragoza, 48 Cal.App.2d 27, 119 P.2d 162, 163, the California Court said:
See also 17 Amer.Juris. p. 669; Fickel v. Granger, 83 Ohio St. 101, 93 N.E. 527, 32 L.R.A.,N.S., 270.
In the case of Wright v. Wright, 93 Conn. 296, 105 A. 684, the wife recovered a decree for alimony and after the decree for alimony was recovered against the husband a creditor of the wife, whose debt was in existence at the time of the rendition of the divorce decree, sued the wife and garnished the husband. The husband answered the writ of garnishment and admitted that he was indebted to his wife and the judgment was then rendered against the husband in the garnishment proceeding. The husband then undertook to plead this judgment as a setoff against the alimony suit of his wife against him. The Supreme Court of Connecticut disallowed this claim of setoff and refused to let the husband set off this claim. He had not mentioned this divorce case in his answer to the writ of garnishment.
II. This court in the case of Ryan v. Ryan, 269 Ala. 541, 114 So.2d 392, the same parties as before the court in the instant case, declared that the alimony awarded to the wife was a fixed sum without reservation and in this respect cannot be modified. The decree, a copy of which is attached to the instant bill of complaint, is the same decree about which the Supreme Court was speaking when it declared the decree could not be modified. It seems clear to us that the real purpose of the instant bill of complaint is for no other purpose than to modify the decree of alimony in the instant case and that the decree cannot now be modified.
III. Coming now to our statute, which is § 350, Title 7, Code of 1940, it provides that mutual debts, liquidated or unliquidated, demands not sounding in damages merely, subsisting between the parties at the commencement of the suit may be set off one against the other. We do not consider that a decree for alimony in favor of the wife against the husband is a debt due from the husband to the wife within the meaning of this statute of set-off. The judgment or decree for alimony is duly imposed by law upon the husband to pay the amount of such alimony awarded for the support of the wife.
Alimony is awarded upon considerations of equity and public policy. Since it is thus founded upon public policy and created in equity, it cannot be diverted from the purpose of support without public injury. Murray v. Murray, 84 Ala. 363, 4 So. 239. The courts which created this fund should see that it is not subjected to the payment of preexisting debts, whether claimed by the husband or by some third party. Fickel v. Granger, 83 Ohio St. 101, 93 N.E. 527, 32 L.R.A.,N.S., 270; Romaine v. Chauncey, 129 N.E. 566, 29 N.E. 826, 14 L.R.A. 712.
In other words, it is our judgment that there are no mutual debts existing between the parties to this case.
We are persuaded that the cases which we have set forth and referred to all show that a debt which a wife owes to the husband at the time of the rendition of the decree for alimony against the husband in favor of the wife cannot be used as a set-off to satisfy or modify the decree for alimony.
Lest we be misunderstood we point out that the mere existence of mutual and independent demands does not authorize an equity court to set them off against each other, unless the allegations of the bill show an intervening equity, which renders it necessary for the protection of the demand sought to be set off. Hall v. Clark, 227 Ala. 571, 151 So. 445. It is claimed that the allegation of insolvency of Elsie Roberts Ryan shows such an intervening equity and also that the allegation of her nonresidence shows such an intervening equity. Under our view of the case, these are questions which we need not consider.
We conclude that the court was in error in overruling the demurrer to the bill of complaint in the case at bar. The case is, therefore, reversed and the cause remanded to the lower court with instructions to enter a decree sustaining the demurrer to the bill of complaint within thirty days from the receipt of a copy of this opinion.
Reversed and remanded with directions.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.