On Petitions for Rehearing.
PER CURIAM.Both respondent and appellant have filed petitions for a rehearing. That of respondent is directed to the action of the Court in reducing the fee of her attorneys from $1,500.00 to $1,000.00. Appellant asserts in his petition that the Court erred (1) in awarding the custody of the minor children to respondent, and (2) in sustaining an allowance for separate maintenance and support notwithstanding the fact that a divorce was denied.
After careful consideration, both petitions are refused. We desire, however, to discuss briefly the contention of appellant that there was no basis for the allowance of any amount for separate maintenance and support after it was found that respondent was not entitled to a divorce. It is said that the complaint contained no independent cause of action for separate maintenance and support and any allowance therefor was beyond the scope of the pleadings.
In some jurisdictions it is held that alimony or separate maintenance can only be granted as an incident to divorce and that in the absence of statute, courts of equity are without jurisdiction to grant such relief. Annotation 141 A. L. R. 399; 27 Am. Jur., page 9. A number of states have enacted statutes empowering courts of equity in an independent action to award separate maintenance and support, but many of these permit such relief only for causes which would warrant a divorce. Accordingly, the statement is frequently found in some of the authorities that alimony cannot be allowed a wife when a divorce is denied. 27 C. J. S., Divorce, § 229 *107(3), page 943. To remedy this situation, some of the states have statutes which, in effect, provide that where the circumstances warrant it, a wife may be given permanent alimony even though she is refused a divorce.
The great weight of authority, however, is to the effect that a court of equity has inherent jurisdiction to entertain an independent suit for separate maintenance or alimony. It is so held in this state. See annotation 141 A. L. R. page 439. Most of the jurisdictions accepting this view hold that a wife may be allowed alimony where the facts warrant such relief, although a divorce is refused. In Broad v. Broad, 35 Cal App. 646, 170 P. 658, 659, the Court said: “Conditions may be such as not to entitle the wife to apply for a divorce, and yet the circumstances surrounding her marital life might be such as to render it obviously unjust to deny her all relief.” In Horton v. Horton, 75 Ark. 22, 86 S. W. 824, it was held, quoting syllabus: “An independent action for alimony, irrespective of divorce proceedings, may be sustained, or alimony may be awarded in the divorce proceedings, notwithstanding the denial of the divorce.”
The instant action was commenced by appellant. He sought a divorce and asked for custody of the children. Respondent denied the charges contained in the complaint and filed a counterclaim or cross-bill seeking a divorce from appellant, together with alimony and counsel fees, and also asked that she be awarded custody of the children. We concluded that neither party was entitled to a divorce, but that the wife was entitled to separate maintenance and support. No good reason appears why it should be necessary for respondent to institute an independent action to get that relief. The conduct of both parties has been investigated. They have submitted their respective contentions, presumably supported by'all available evidence, to a court of equity — a court clothed with full power to settle the rights and equities of the parties. We think it is proper to *108determine their rights on the facts presented and not force respondent to again litigate the same issue. The necessities of respondent and the children are immediate.
Our divorce statute, 46 St. at E. 216, permits the wife in every action for divorce, whether she be plaintiff or defendant, to ask for the allowance of alimony and suit money, and provides that in every judgment of divorce, “the court shall make such orders touching the maintenance, alimony and suit money of the wife, or any allowance to be made to her * * *, as from the circumstances of the parties and nature of the case may be fit, equitable, and just”. But it is generally recognized that such a statute does not abrogate or impair the original inherent power of equity to grant alimony independent of a divorce. Heflin v. Heflin, 177 Va. 385, 14 S. E. (2d) 317, 141 A. L. R. 391.
But it is contended that the counterclaim did not allege a cause of action for support and separate maintenance and that the allowance of $2,000.00 for that purpose was beyond the scope of the pleadings. The counterclaim or cross-bill contains the usual allegations in an action of this kind. Among other facts, it was alleged that the appellant “is well able to and has sufficient means to provide for the support and maintenance of the defendant and for the support, maintenance and education of the infant children born of their marriage”, and “that the defendant is without sufficient funds or property to wholly maintain the support of herself and the said infant childen, either permanantly or during the pendency of this action.” We think the counterclaim includes appropriate allegations for separate maintenance and support. Substantially the same contention was made in Cairnes v. Cairnes, 211 Ala. 342, 100 So. 317, 318. In that case the wife filed a bill for a divorce from bed and board and asked for alimony and custody of the minor childen. The trial court denied the claim for divorce, the primary feature of the bill, but under *109the general prayer awarded the wife support for herself and the children. The husband appealed. In sustaining the relief granted by the trial Judge, the Court said: “Counsel insist that, as the trial court declined the special and primary relief sought, it had no right, under the present pleadings, to award relief that was granted under the general prayer. While the relief granted was not what was specifically prayed for, it was consistent with the case made by the bill and proof, and could be awarded under the general prayer.”
In Murray v. Murray, 238 Ala. 158, 189 So. 877, 878, the wife brought a suit for a divorce and alimony. The trial court granted both. On appeal it was held that the wife was not entitled to a divorce, but the award of alimony was affirmed. It was there stated:
“While we do not agree with that aspect of the decree which grants a divorce, it does not follow that the allowance of $30.00 per.month should not be treated as an award independent of the divorce. In this jurisdiction a court of equity has original power to award alimony pending a separation under circumstances which do not justify a divorce, or when a divorce is not sought or awarded. While the conduct of appellant did not justify a divorce, it does justify, in our opinion, an allowance for separate maintenance on the theory that their separation was not voluntary abandonment by her of him. * * * An allowance for separate maintenance without divorce is in the sound discretion of the court exercising equity jurisdiction.
“We think that the ends of justice will be met if we here reverse the decree insofar as it grants a divorce, but affirm it insofar as it makes a monthly allowance of $30.00 a month to appellee, but modify that feature of it which makes the allowance permanent so that it will be subject to the further orders of the circuit court in its discretion from time to time ”
*110In further support of the foregoing conclusion, see Cray v. Cray, 32 N. J. Eq. 25, and Carboni v. Carboni, 99 Mont. 279, 43 P. (2d) 634.
In concluding our discussion, it may not be amiss to call attention to the fact that on May 24, 1951, the following statute was enacted, Act No. 316 of the 1951 Acts of the General Assembly: “In all actions for divorce a mensa et thoro, allowance of alimony and suit money and allowance of alimony and suit money pendente lite shall be made according to the principles controlling such allowance in actions for divorce a vinculo matrimonii
The foregoing statute was passed long after the trial of the instant case and several months after the appeal was. heard in this court. Under these circumstances, it could not apply to this case and has not been considered. Nor do' we intimate any opinion as to its purpose or effect.
Mr. Justice Taylor desires to say that he is in full accord with the view that appellant’s petition should be denied but for the reasons set forth in his dissenting opinion, thinks, respondent’s petition should be granted.