Its amount is liable at any time to be in creased or diminished at the discretion of the court; 8 Sim. 315; Clark v. Clark, 6 W. & S. (Pa.) 85; and the court may insert a provision in the decree alloning any inter ested party thereafter to apply, on account of changed conditions, for a modification of the amount allowed; Stahl v. Stahl, 59 Hun 621, 12 N. Y. Supp. 854. If, however, the right is not reserved in the decree or given by statute, the amount cannot subsequently be varied in the ease of absolute divorce; Howell v. Howell, 104 Cal. 45, 37 Pac. 770, 43 Am. St. Rep. 70; Walker v. Walker, 155 N. Y. 77, 49 N. E. 663; otherwise under a decree for separation; Taylor v. Taylor, 93 N. C. 418, 53 Am. Rep. 460. And where a statute authorizes the amount decreed for alimony to be changed, it cannot operate retrospectively, as thereby it would deprive the person of property without due process of law ; Livingston v. Livingston, 173 N. Y. 377, 66 N. E. 123, 61 L. R. A. 800, 93 Am. St. Rep. 600.
Equity has power to modify provisions as to alimony and to retain jurisdiction over such decrees. Where an agreement between the parties provides for something more than alimony (as where it binds the husband to pay the wife a certain sum until her death, irrespective of whether she survives him or not, and transfers certain property, to her absolutely and to trustees to pay her an al lowance during her life and such agreement is embodied in the divorce decree), equity should not afterwards destroy the agreement although the wife marries again; but three judges dissented on the ground that the in sertion of such an agreement in the decree was improper and that the decree should be set aside, the wife retaining her rights at law for the breach of the agreement ; Emer son v. Emerson, 120 Md. 584, 87 Atl. 1033.
The preceding observations respecting the nature and incidents of alimony should be received with some caution in this country, where the subject is so largely regulated by statute; Burr v. Burr, 10 Paige, Ch. (N. Y.) 20; id., 7 Hill (N. Y.) 207. It is said that alimony cannot be regarded as a debt owing from a husband to wife; Barclay v. Barclay, 184 Ill. 375, 56 N. E. 636, 51 L. R. A. 351; but that it is rather to be considered as a Penalty imposed for the failure to perform a duty ; Wetmore v. Markoe, 196 U. S. 74, 25 Sup. Ct. 172, 49 L. Ed. 390, 2 Ann. Cas. 265; Romaine v. Chauncey, 129 N. Y. 566, 29 N. E. 826, 14 L. R. A. 712, 26 Am. St. Rep. 544. Nor is it a debt within the mean ing of the constitutional inhibition against imprisonment for debt ; State v. Cook, 66 Ohio St. 566, 64 N. E. 567, 58 L. R. A. 625.
And a discharge in bankruptcy does not bar the collection of arrears of alimony and the allowance for the support of minor children; Dunbar v. Dunbar, 190 U. S. 340, 23 Sup. Ct. 757, 47 L. Ed. 1084; Wetmore v. Markoe, 196 U. S. 68, 25 Sup. Ct. 172, 49 L. Ed. 390, 2 Ann. Cas. 265 ; Deen v. Bloomer, 191 Ill. 416, 61 N. E. 131; and see Beach v. Beach, 29 Min (N. Y.) 181; contra, Arrington v.
Arrington, 131 N. C. 143, 42 S. E. 554, 92 Am. St. Rep. 769.
The amount to be awarded depends upon a great variety of considerations and is gov erned by no fixed rules; Ricketts v. Ricketts, 4 Gill (Md.) 105 ; Burr v. Burr, 7 Hill (N. Y.) 207; Richmond v. Richmond, 2 N. J. Eq. 90; McGee v. McGee, 10 Ga. ,477; Muir v. Muir, 133 Ky. 125, 92 S. W. 314, 28 Ky. L. Rep. 1355, 4 L. R. A. (N. S.) 909. The abili ty of the husband, however, is a circum stance of more importance than the necessi ty of the wife, especially as regards perma nent alimony ; and in estimating his ability his entire income will be taken into consid eration, whether it is derived from his prop erty or his personal exertions ; 3 Curt. Eccl. 3, 41; McCrocklin v. McCrocklin, 2 B. Monr. (Ky.) 370; Bursler v. Bursler, 5 Pick. (Mass.) 427; Battey v. Battey, 1 R. I..212; Small v. Small, 28 Neb. 843, 45 N. W. 248 ; MeGrady v. MeGrady, 48 Mo. App. 668.
Future expectations may be taken into consideration; Cralle v. Cralle, 84 Va. 198, 6 S. E. 12; Horning v. Horning, 107 Mich. 587, 65 N. W. 555 ; Muir v. Muir, 133 Ky. 125, 92 S. W. 314, 4 L. R. A. (N. S.) 909 and note. But if the wife has separate property ; 2 Phil. 40 ; or derives income from her per sonal exertions, this will also be taken into account. If she has sufficient means to sup port herself in the rank of life in which she moved, she is entitled to no alimony ; Stev ens v. Stevens, 49 Mich. 504, 13 N. W. 835 ; Miller v. Miller, 75 N. C. 70; 2 Flagg. Consis. 203. The method of computation is, to add the wife's annual income to her husband's ; consider what, under all the circumstances, should be allowed her out of the aggregate ; then from the sum so determined deduct her separate income, and the remainder will be the annual allowance to be made her. There are various other circumstances, how ever, beside the husband's ability, to be tak en into consideration : as, whether the bulk of the property came from the wife, or be longed originally to the husband; Fishli v. Fishli, 2 Litt. (Ky.) 337; Robbins v. Robbins, 101 Ill. 416; or was accumulated by the joint exertions of both, subsequent to the mar riage; Lovett v. Lovett, 11 Ala. 763; Jeans v. Jeans, 2 Harr. (Del.) 142; whether there are children to be supported and educated, and upon whom their support and education devolves ; Amos v. Amos, 4 N. J. Eq. 171; Fishli v. Fishli, 2 Litt. (Ky.) 337; McGee v. McGee, 10 Ga. 477; Emerson v. Emerson, 68 Hun (N. Y.) 37, 22 N. Y. Supp. 684; Park hurst v. Race, 100 Ill. 570 ; Call v. Call, 65 Me. 407; Halleman v. Halleman, 65 Ga. 476; the nature and extent of the husband's de lietum; 3 Hagg. Eccl. 657; Turrel v. Turrel, 2 Johns. Ch. (N. Y.) 391; Williams v. Wil liams, 4 Dec. Eq. (S. C.) 183; Sheafe v. Sheafe, 24 N. H. 564 ; the demeanor and con duct of the wife towards the husband who desires cohabitation; Burr v. Burr, 7 Hill (N. Y.) 207; Dejarnet v. Dejarnet, 5 Dana (Ky.) 499; Stewartson v. Stewartson, 15 Ill. 1451 Jones v. Jones, 95 Ala. 443, 11 South.