150 S.E. 748 | W. Va. | 1929
The plaintiff, a citizen of Virginia, instituted a suit for alimony against the defendant (plaintiff in error) October 21, 1925, on the ground of desertion. At December Rules, 1925, the defendant filed his answer in the nature of a cross-bill charging the plaintiff with continuous desertion since 1918, and praying for an absolute divorce. At January Rules, 1926, the plaintiff filed a "special reply", praying for dismissal of the answer of the defendant in so far as it set up new matter and asked for affirmative relief. May 8, 1926, the plaintiff filed in open court an amended pleading, praying for an absolute divorce on the grounds of adultery. A decree, on the final hearing, granting the plaintiff a divorce from bed and board and $200.00 a month temporary alimony was affirmed on a former appeal of defendant. Hale v. Hale,
This suit was instituted December 28, 1927, for absolute divorce and permanent alimony, under section 13, Chapter 64, Code, providing that when a divorce from bed and board has been decreed for abandonment, or desertion or other cause, and two years shall have elapsed from the bringing of the suit wherein such decree is entered, without reconciliation (of the parties), the court may, upon the application of the injured party, and the production of satisfactory evidence, taken in support of such application, decree a divorce from the bonds of matrimony. Upon the bill, demurrer and answer thereto, and depositions of the parties, the plaintiff was decreed an absolute divorce and (subject to future order of the court) permanent alimony for life in the sum of $200.00 per month. The defendant contends (1) that this suit was prematurely instituted; (2) that the plaintiff deserted him, and is therefore not entitled to alimony; and (3) that the amount decreed is excessive.
Whether the two-year period commenced at the institution of the first suit, it unquestionably did so when the defendant filed his cross-bill converting the suit into a divorce proceeding, and it had elapsed when this suit was brought.
The second question was settled in the first suit, and is, therefore, res judicata.
In the first suit the value of defendant's property was fixed at approximately $106,000.00. In the present suit he testified that the value of his real estate has decreased about 50%, and that his entire income is $2400.00 a year. He contends that alimony should be paid only from income and that it is unjust to require him to devote all of his income to the support and maintenance of the plaintiff. He bases his contention on the general rule that alimony is payable out of the earnings of the husband or the income from his property, and places special reliance on point 5 of the syllabus in Kittle v. Kittle,
The defendant did not qualify himself as well posted on property values, and his expressions of value are couched in uncertain terms. For which reasons it may be that the circuit court was not impressed with his estimates. Besides, the alimony herein being "the sum allowed the wife in lieu of dower and as compensation for the treatment she received * * * should be reasonably proportionate to her loss." Sperry v. Sperry,
Affirmed. *342