Plaintiff, although continuing to reside with her husband, brought an action in equity against him for maintenance and support money. Held: where husband and wife are not separated and the purpose of the marriage relation is being carried out, an action in equity for support money cannot be maintained.
Had the plaintiff petitioned for a divorce from bed and board, a Nebraska statute giving the court discretion to award money for support and maintenance even though no divorce is granted and, apparently, regardless of whether or not the wife is living with her husband, might have been applicable. However, in lieu of proceeding under this statute, plaintiff sought to maintain an action of an equitable nature to compel the husband to discharge his legal duty to support her in a manner in keeping with his means, position, and station in life. In bringing this suit, plaintiff relied upon the case of Earle v. Earle, which, previous to the enactment of the above-mentioned statute, had held that there was an "inherent" power in equity to grant alimony. In failing to avail herself of the statute, the plaintiff ran into the uncertainties of equity jurisdiction.
Claire D. Johnson,
Recent Cases: Domestic Relations — Wife's Right to Support While Living With Husband — Equity Jurisdiction,
33 Neb. L. Rev. 103
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