King v. KingKing v. King
Defendant George H. King, III, brings this appeal from a judgment awarding his wife, plaintiff Jacqueline Hatchell King, alimony pendente lite in the sum of $396.00 per month рlus $50.00 per month for the support of their minor child.
None of the facts are disputed. Mr. King’s monthly income, after deductions, was, at the time of the trial, $348.40. He owned separate property, in the form of stock, valued at $123,678.78, from which he derived no revenue. He owned a home, for which he paid $25,000.00. We further gather from the record that he had a cash fund composed of dividends on his stock paid prior to his 21st birthday, which, at the time оf his marriage, had about $50,-000.00 in it. He used some of this money to buy the home mentioned above, and drew funds from it with some regularity during his marriage. He said he cоuld get money from the fund when he really needed it. There is no evidence as to the amount of the fund at the time of the trial, although it was apрarently not depleted. The record further reflects Mr. King’s monthly living expenses to be $364.29.
The parties stipulated that Mrs. King’s monthly living expenses were $510.00, bаsed on her testimony at the trial. However, we note that she only testified to a total of $480.00, the difference being a reduction of $30.00 a month in thе amount she claimed for rent. She testified she had a monthly income from part time work of $64.00.
The total award of $446.00 per month made by the trial judgе is substantially in
In this court, defendant contends that the trial court erred in taking into considerаtion the separate property of the husband in determining the amount of alimony to be awarded the wife, and in making an award in excess оf the income of the husband.
As stated by defendant in his brief, “The question before this Court is whether ‘means of the husband’ includes funds which can be derived from sale of separate assets of the defendant, or whether it is to be construed as being limited to the defendant’s income.”
Article 148 of the Civil Code provides as follows:
“If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”
Thе term “means” as used in Article 148 has been defined only once by our courts. In Bowsky v. Silverman,
“Article 148 of the Civil Code, as amended by Act No. 130 "of 1928, says that if the wife has not sufficient income for her maintenance pending the suit for separation from bed and board or divorce, ‘the judge shall allоw her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means оf her husband.’
“Nothing is said in this article about the income or earnings of the husband. While the separation or divorce proceedings are рending, the Code says that the husband must pay for the support of his wife out of his ‘means’. The word ‘means’ as used in this article refers to the husband’s resources and not necessarily to his income. His ‘means’ may consist either of property of a physical character, frequently referrеd to as assets, or it may consist of income from such property or income from labor or services performed. The word ‘means’, as' used in this article of the Code, signifies any resources from which the wants of life may be supplied. The amount necessary for the support оf a wife under such conditions as those referred to in this article is a debt which the husband must discharge out' of his means, and his means may consist of money in his pocket, cash in bank, income from whatever source, or assets in the way of real or personal property.”
A factual аnalysis of a number of cases dealing with an award of alimony pendente lite to the wife under Article 148 reveals that in more cases than nоt, the income of the husband is the major factor considered in fixing the amount. See Butterworth v. Butterworth,
“The needs of the wife and the children and thе income of the husband are the decisive factors in fixing alimony pen-dente lite and permanent.”
However, in that case, the court fоund that the husband had sufficient income to maintain his wife and children in the circumstances to which they were accustomed, and the specifiс point at issue in this case was not before the court. The same is true in Schneider v. Schneider,
In Reichert v. Lloveras,
“Counsel for the wife says that an alimony of $60 per month to the wife where the husband has an incоme of $250 per month and assets amounting to nearly $6,000 would not be excessive. It would be true if the husband had a net income of that amount and had uninсum-bered assets to the amount stated. But, in the present case, the amount stated is the gross and not the net income; and, while the property has a value of approximately $6,000, it is incumbered to the extent of $2,000.”
It is clear that the court in that case considered all of the husband’s assets in arriving at the conclusion that $40.00 a month was a proper award.
In Cabral v. Cabral,
We find, after a review of the jurisprudence, that the proper definition of “means” in Article 148 is that given by the Supreme Court in the Bowsky case, supra. Of course, each case must be decided in the light of its own peculiar facts and circumstances.
In this case, the evidence shows that, before their separation, the parties hereto lived substantially beyоnd the salary earned by the defendant, and that the deficiency was met out of the drawing account hereinabove mentioned. The needs of the wife and child have been stipulated to by defendant. Obviously, if only the income of the husband were to be considered by us in awarding alimony, and some allowance for the husband’s expenses were to be made, only about one third of these needs could be met.
We find from the record, however, that the means of the husband are sufficient to meet the needs of his wife and child. ' We find these needs to total $480.00 per month, frоm which must be deducted the sum of $64.00, which are the monthly earnings of the wife.
The judgment appealed from is therefore amended by reducing the amount of alimony pendente lite to $366.00 per month, with an additional $50.00 per month as child support, and, as amended, it is affirmed, at defendant’s cost.
Amended and affirmed.