Richards v. RichardsRichards v. Richards
Hеlen Hughes Richards, libellant, filed a libel for divorce against Atherton Richards, libellee, on June 30, 1955. In her libel, as originally filed, she sought a decree of divorce from bed and board on the ground of grievous mental suffering inflicted upon her by libellee. In addition thereto, she sought temporary alimony and advancement of reasonable expenses to be incurred for trial, pending the final disposition of the libel. She also sought permanent alimony, attorneys’ fees and other expenses of prosecuting the libel over and above advances previously made, and division of property, upon the granting of divorce.
Shortly after the filing of the libel, the circuit judge held hearings to determine whether libellee should be required to pay temporary alimony and to advance reasonable expenses to be incurred for trial. He deferred his decision on temporary alimony upon stipulation of the parties that such alimony might be awarded if after a full hearing of the сase the award should be found fair and reasonable. Decision on temporary attorneys’ fee was also deferred. However, the judge ordered libellee to advance $500 to libellant for expenses of taking depositions.
In due course, libellee filed his answer denying the allegations of the libel. He also filed a cross-libel in which he sought absolute divorce on the ground of grievous mental suffering inflicted upon him by libellant.
The libel and cross-libel were set for hearing on Janu
Upon the granting of libellant’s motion, libellee announced that he would not offer any evidence in support of his cross-libel. The judge thereupon heard so much of libellant’s testimony as he deemed sufficient to establish the ground for divorce, and rendered an oral decision dismissing libellee’s cross-libel, granting absolute divorce to libellant on the ground alleged in the libel, and reserving the questions of temporary and permanent alimony, expenses of the proceeding, and division of property, for decision at a later date. A decree of divorce conforming to the oral decision was entered on March 14, 1956.
The judge took voluminous evidence bearing on the questions of alimony, expenses of the proceeding, and division of property at extensive hearings held over a period of seven months. Upon consideration of such evidence, he filed a decision in which he made an award of permanent alimony of $600 per month, commencing as of February 1,1956; an allowance of $3,036.99 for expenses; and a division of household furniture, silver, works of art, and other paraphernalia, whereby the bulk of such property went to libellant. He denied temporary alimony for the period between June 30, 1955, and February 1, 1956, and division of property other than household paraphernalia. The allowance of $3,036.99 for expenses was in addition to the sum previously advanced for the taking of depositions, but did not include attorneys’ fees and fee and expenses of expert witness. A supplemental decree of divorce in accordance with such decision was entered on September 27, 1957.
On her appeal, libellant charges that the judge erred in entering the decree of divorce before deciding the remaining issues of the case; in denying temporary alimony, temporary and final attorneys’ fees, and fee and expenses of expert witness; in failing to awаrd adequate permanent alimony; and in failing to make a division of property other than household paraphernalia.
Libellee, on his appeal, specifies but one error, namely, that the judge erred in ordering him to pay libellant’s expenses other than attorneys’ fees and fee and expenses of expert witness.
Libellant’s charge that the judge erred in entering the decree of divorce before deciding the remaining issues of the case does not present any question for review on her appeal. The decree was entered over libellant’s objection. The basis of the objection was that the entry of the decree would cut off libellant’s dower, and if libellee should die before the judge decided the remaining issues, libellant would not only be without dower but also be without any relief to compensate for her loss of dower. Such objection is now moot by reason of the entry of the supplemental decree of divorce.
Libellant’s charge of error regarding the denial of temporary alimony is well taken. The judge made the monthly payments of alimony retroactive to February 1, 1956. According to the decision, he did so pursuant to the stipulation of the parties. But the stipulation of the parties was that temporary alimony be made retroactive to the date of filing of the request therefor, if it should be found fair and reasonable after a full hearing of the case.
Also, entirely apart from the stipulation of the parties, the application of pertinent statutory provision to the facts of this case leads to the same conclusion. This point may be considered in connection with libellant’s charge that the judge erred in denying her request for attorneys’ fees and fee and expenses of expert witness, and libellee’s charge that the judge erred in ordering him to pay libellant’s expenses other than attorneys’ fees and fee and expenses of expert witness. These charges involve the application of R.L.H. 1955, § 324-34, which reads as follows:
“After the filing of a libel for divorce or separation the judge may make such orders relative to the personal liberty and support of the wife pending the libel as he may deem fair and reasonable and may enforce such orders by summary process. The judge may also compel the husband to advance reasonable amounts for the compensation of witnesses and other expenses of the trial, including attorney’s fees, to be incurred by the wife and may from time to time amend and revise such orders.”
The foregoing provision is an amendment of R.L.H. 1945, § 12224, made by S.L.H. 1955, c. 79. The original provision read as follows:
“Whenever it shall be made to appear to the judge after the filing of any libel, that the wife is under restraint or in destitute circumstances, the judge may pass such orders to secure her personal liberty and reasonable support, pending the libel, as law and justice may require, and may enforce such orders by summary process. The judge may also compel thehusband to advance reasonable amounts for the compensation of witnesses and other reasonable expenses of trial to be incurred by the wife. The judge may revise and amend such orders from time to time.”
In
Nobrega
v.
Nobrega,
S.L.H. 1955, c. 79, eliminated the words “under restraint or in destitute circumstances” from the original provision. Thus, under the amendment, a showing of wife’s destitute circumstances is not a prerequisite to an award of temporary alimony or allowance of expenses of trial. The amendment leaves the judge with discretion to make an award of temporary alimony limited only by the standard that it be fair and reasonable. The same is true with respect to expenses of trial.
Under R.L.H. 1955, § 324-34, we think that a wife who has sufficient means to live in her accustomed manner, and to prosecute her libel for divorce, without impairing the capital of her separate estate, is not entitled to temporary alimony or expenses of trial.
Spreckels
v.
Spreckels,
In Harding v. Harding, supra, the husband was a man of great wealth whose net annual income was in excess of $30,000. The wife also owned considerable amount of property, consisting of notes, bonds, and stocks, but her income was less than $1,000 per year. The trial court ordered the husband to pay temporary alimony of $300 per month to the wife for her support, $1,000 for attorneys’ fees, and $400 for other expenses. The husband appealed to the appellate court from the order and obtained its reversal. The wife then appealed to the supreme court. In reversing the judgment of the appellate court and affirming the order of the trial court, the supreme court made the following statement, with which we are in accord:
“It would seem equitable and just that the wife, who is prosecuting her suit in good faith, should be placed upon an equality with her husband; and if her income be insufficient to maintain her, and to carry on the litigation, his income should be required to contribute, before she should be required to exhaust her estate. * * * If the income of the wife be sufficient to suitably support her, there will ordinarily exist no reason for making an allowance for that purpose. But if the income of the wife be insufficient, and that of the husband be ample, equitable considerations and the weight of authority requires, as we think, that such a sum should be allowed from the husband’s income as will, when added to her own, enable the wife to live comfortably, pending the litigation, in the station in life to which he has accustomed her. It is clear that the income of appellant was insufficient to thus support her, and, the income of appellee being ample to properly maintain his family in the station in life in which he had kept them, an allowance for the wife’s support was properly made. * * *
“It is also urged that the court erred in allowing for solicitors’ fees and other expenses of litigation any sum whatever. What has already been said disposes of the principal objection. Appellee will be able to make a very determined and expensive contest. In order that his wife may have a fair opportunity to present her cause, it is necessary, not only that she be suitably maintained, but she must be enabled to employ counsel, and make proper preparation for trial.”
Here, libellant has an annuity which provides her with $656.25 per month. The judge concluded that such monthly sum was, “considering the facts and circumstances of the parties litigant, insufficient to take care of her necessary and suitable expenses for the oncoming years and that this amount should be supplemented by libellee to the extent of $600 a month, and that such award is, pursuant to the stipulation of the parties hereto, retroactive to February 1, 1956.”
Such conclusion necessаrily implies a finding that periodic alimony of $600 per month was fair and reasonable. We have already noted that the stipulation of the parties was that temporary alimony, if found fair and reasonable, be made retroactive to June 30, 1955. There is no evidence that libellant’s financial circumstances after February 1, 1956, were any different from the circumstances during the interval between June 30, 1955, and February 1, 1956. We hold that under the applicable statutory provision, as well as under the stipulation of
The judge denied libellant’s prayer for attorneys’ fees on the ground that there was no basis for allowing such fees in view of libellant’s substantial liquid cash position at the outset of the proceeding. He assigned the same reason for his denial of temporary alimony. The allowance or denial of temporary alimony and temporary and final attorneys’ fees to a wife should not depend on the happenstance that the wife kept her funds in cash instead of having the same invested in securities or other forms of investment. Also, it appears that the judge failed to apply his reasoning consistently in this case. If a wife is not entitled to temporary alimony and attorneys’ fees by reason of her cash position, the same reason should logically preclude her from obtaining an allowance of other expenses.
But here, despite libellant’s cash position, the judge ordered libellee to pay libellant’s expenses other than attorneys’ fees and fee and expenses of expert witness. The judge gave two reasons for such action, first, that such expenses were expenses reasonably incurred by libellant as a direct and proximate result of the divorce proceeding which stemmed from libellee’s misconduct, and, second, that libellant’s income was insufficient to enable her to meet her costs of living during the pendency оf the proceeding and still pay such expenses without impairing her capital.
We think that the reasons given for the allowance of libellant’s expenses other than attorneys’ fees and fee and expenses of expert witness are sound and valid. But these reasons are equally applicable to attorneys’ fees and require that such fees be allowed. Libellant needed the services of her attorneys in order to assert her rights in the divorce proceeding. The uncontroverted evidence is
With respect to fee and expenses of expert witness, which was item 24 of libellant’s schedule of expenses, the judge stated as follows: “Item 24 is an item in the amount of $870.80, payable to Colin G-. Lennox for expert witness fees and out-of-pocket expenses for the period of May 3, 1957 [sic] through May 11, 1956 for аppraisal of libellee’s stockholdings in Kahua Ranch and which stock was acquired prior to marriage to libellant.” Other than such statement, the judge gave no reason for disallowance of the item. The implication from the statement is that this item of expenditure was not reasonably incurred because the value of libellee’s holding in Kahua Ranch, Limited, was not a proper issue in the case and expert testimony regarding such value was immaterial and unnecessary.
However, at no time did the judge rule that the value of libellee’s holding in Kahua Ranch, Limited, was not a proper issue in the case. As a matter of fact, it was treated as a major issue, and more time was spent on it at the hearings than on any other issue. The judge permitted libellant’s expert witness to testify over libellee’s objection that he failed to qualify as an expert. Five sessions were devoted exclusively to his testimony, which is reported in more than 300 pages of the transcript. After hearing the testimony, the judge ruled: “Now with respect to the appraisal of Mr. Lennox, I have given the matter a very considerable amount of thought, and I have concluded that I would accept the expertness of the witness, and I will consider such arguments advanced by Judge Moore to go to the weight or credibility of the witness; so that I will permit the testimony of the witness to stand.” In view of such circumstance, we hold that the expendi
We now come to libellant’s charges that the judge erred in failing to award adequate permanent alimony and in failing to make a division of property other than household paraphernalia. These charges involve the interpretation and application of S.L.H. 1955, c. 77, which is incorporated in the first paragraph of R.L.H. 1955, § 324-37, and reads as follows:
“Upon granting a divorce the judge may make such further decree or order against the defendant, compelling him to providе for the maintenance of the children of the marriage, to provide such suitable allowance for the wife, for her support, and to finally divide and distribute the estate, real, personal, or mixed, whether community, joint, or separate, in such proportion as shall appear just and equitable, having regard to the respective merits of the parties, to the ability of the husband, to the condition in which they will be left by such divorce, to the burdens imposed upon it for the benefit of the children of such marriage, and all other circumstances of the case; but no such final division shall impair the power of the court in respect to revision of allowances for minor children. Such decree, as to the custody, management and division of property shall be final and conclusive upon both parties subject only to the right to appeal as in civil cases, and provided that the court shall at all times including the pendency of any appeal, have the power to grant any and all restraining orders that may be necessary to protect the parties and secure justice.”
Libellant’s contention with respect to periodic alimony is that, under R.L.H. 1955, § 324-37, she is entitled to periodic alimony which, added to her income, will enable her to maintain the standard of living to which she was
At the hearings, libellant claimed that the sum required for the maintenance of her accustomed standard of living was $1,813 per month, or $21,756 per year, net after Federal and Territorial income taxes; that she had only $2,400 of “pure income” per year of her own which might be applied to her living expenses, consisting of $600 in bank interest, $200 in dividends, and $1,600 from annuity; that she received $7,875 annually from an annuity provided by her mother but only $1,600 of such annual sum was pure income and the balance was return of wasting asset.
With respect to division of property, libellant contends that she is entitled to a reasonable share of libellee’s property, which she claims to be one-third, and that the judge abused his discretion in failing to award such share or, in the alternative, to make an equivalent cash award as property settlement or as alimony in gross. The basis of her claim to such share is that she considers it to be in the nature of a substitute for dower. She argues that her marriage to libellee would not have been dissolved except for libellee’s misconduct, that if the marriage had continued she would have been entitled to dower upon libel-lee’s death, and that she is entitled to “receive at least financially that which would have been hers but for the Husband’s cruel and inhuman treatment.”
Libellant also urges upon us that R.L.H. 1955, § 324-37, makes the personal conduct of a husband toward his wife a material consideration in the determination of the extent of relief thereunder in view of the requirement that the judge have “regard to the respective merits of the parties”
We shall begin our consideration of libellant’s foregoing contentions with an examination of the relief available under R.L.H. 1955, § 324-37. Nor an understanding of the nature and scope of such relief, a study of prior statutes and decisions of this court on the subject will be of assistance.
The original statute on the subject was C.C. 1859, § 1328, which provided that upon the granting of a divorce “the court may make such further decree or order against the defendant, compelling him * * * to provide such suitable allowance for the wife, for her support, as the court shall deem just and reasonable, having regard to the ability of the husband, the character and situation of the partiеs, and all other circumstances of the case.” Under it, the amount of alimony was determined by the circuit court, the determination of the court was reviewed on exceptions, and upon such review the determination had the effect of a jury verdict.
Kilikina,
v.
Hake,
By S.L.H. 1903, c. 22, jurisdiction over divorce was transferred from the circuit court to the circuit judge at chambers, and henceforth determinations in divorce proceedings were reviewed on appeal as in equity appeals.
De Coito
v.
De Coito,
There was no further statutory change on the subject until the enactment of S.L.H. 1955, c. 77.
The amount of periodic alimony was subject to modification for change of circumstance of either party, both by statute and under the decisions of this court. R.L.H. 1955, § 324-37, par. 2;
Lazarus
v.
Lazarus,
On the other hand, alimony in gross was not subject to modification because its award constituted a final settlement of the financial affairs of the parties.
Nobrega
v.
Nobrega,
In
Farm
v.
Cornn,
With regard to the considerations to be taken into account in determining whether periodic alimony or alimony in gross should be awarded, this court stated in Nobrega v. Nobrega, 14 Haw. 152, 155: “As a rule the alimony should be payable periodically. The court can then control its amount more effectually and change it from time to time according as the means and needs of the. parties change. An award in gross may be made appropriately when the husband is likely to vexatiously delay or withhold payments, and of course, there are other circumstances to be considered.” It also stated in Santos v. Santos, supra, at page 647: “An award of alimony in gross accomplishes a more equitable result than periodic alimony in circumstances where a wife has contributed real or personal property owned by her at the time of marriage, or where property has been accumulated after marriаge by the joint efforts of husband and wife. In such cases, it is generally held that a wife’s contribution should be restored out of the estate of the husband so acquired.” However, in the latter case it recognized that there was no criterion which embraced all of the possible circumstances in which an award in gross was proper and that such award “should properly be confined to those cases wherein the presence of special circumstances might require it or render it advisable.”
Aside from general statements in
Lazarus
v.
Lazarus, supra,
and
Laing
v.
Laing, supra,
that the amount of alimony rested within the sound discretion of the trial court, and the dictum in
Nobrega
v.
Nobrega,
In Santos v. Santos, supra, at page 652, this court stated that the last statement in Nobrega v. Nobrega did not “mandate an inflexible apportionment, but the ratio of the amount of the award to the husband’s estate may be considered as one of the primary factors in determining the amount of the award in gross.”
Such was the state of the law when S.L.H. 1955, c. 77, was enacted to amend the original statute.
A feature of the original statute, of significance in connection with libellant’s contentions regarding permanent alimony and division of property, was that it empowered the judge to order a husband to provide “suit
However, this court at no time deviated from its position in
Nobrega
v.
Nobrega,
S.L.H. 1955, c. 77, was enacted for the sole purpose of enabling the judge to effect a property settlement in a divorce proceeding, thus saving the parties the bother of resorting to a separate civil action to obtain such settlement. It did not change the pre-existing law regarding alimony. The Judiciary Committee of the House of Eepresentatives and the Judiciary Committee of the Senate, Twenty-Eighth Legislature of the Territory of Hawaii, stated:
“1. The purpose of this bill is to confer upon the Judge who grants a final decree of divorce the power to make property settlements between the parties of allproperty, real, personal, or mixed, whether held as community, joint or separate property. *****
“3. At present, because of the lack of power by the judge to order property settlements, two or three trials may be necessary before the interests of the parties to a divorce are finally settled. In addition to the trial for divorce, a trial to partition the real estate and a trial to divide personal property may be necessary. Court costs and attorney’s fees may mount and much time may be wasted. The provisions of this bill are intended to solve these problems and correct injustices which arise under the present law. *****
“5. This bill will not in any way affect the awarding of alimony. It is the intent of this bill that, depending on all the circumstances, in addition to a property settlement, the aggrieved party may be entitled to alimony.” Standing Committee Report No. 356, House Journal 1955, p. 697; Standing Committee Report No. 595, Senate Journal 1955, p. 632.
This statute was inartistically drawn. After empowering the judge to grant two types of relief, namely, an order compelling a husband to provide suitable allowance for his wife’s support and an order for a just and equitable division of property, it set forth the considerations to be taken into account in determining the extent of the relief which the judge may grant in the following words: “having regard to the respective merits of the parties, to the ability of the husband, to the condition in which they will be left by such divorce, to the burdens imposed upon it for the benefit of the children of such marriage, and all other circumstances of the case.” From the position in which those words are рlaced, it is not clear whether all of the considerations are applicable to both types of relief, or
Here, onr concern is with the phrase “the respective merits of the parties.” Libellant’s position is that the phrase applies to both types of relief and that it has reference to personal conduct of the spouses toward each other. We think otherwise. We think that in the context in which the phrase is used, it means the merits of the respective claims of the spouses to the property sought to be divided and is pertinent only in connection with division of property. We do not think that it has any reference to personal conduct of the spouses. The phrase is used in statutes of Vermont, Washington, and Wyoming. See Vermont Statutes, Title 15, § 751; Revised Code of Washington, § 26.08.110; Wyoming Compiled Statutes 1945, § 3-5916. In none of these States has it been interpreted to meаn personal conduct of the spouses toward each other.
Personal conduct of the spouses toward each other is material to the establishment of a ground for divorce. But it has no bearing on the question as to which spouse has a better claim to the property sought to be divided in a divorce proceeding.
Likewise, personal conduct of a husband toward his wife should have no bearing on the determination of the amount of alimony. Alimony is not awarded as reward for virtue and punishment for wrongdoing. Under the statute, it is a “reasonable allowance for the wife, for her support.” The reasonable need of a wife for her future support does not depend on whether her husband was kind or inconsiderate to her in the past. There are statements in
Santos
v.
Santos, supra,
and
Clifford
v.
Clifford,
The foregoing discussion disposes of libellant’s contention that personal conduct of a husband toward his wife is a material consideration in the determination of the extent of the relief that may be granted under R.L.H. 1955, § 324-37, and we see no need for reviewing the evidence regarding the grievous mental suffering inflicted upon libellant by libellee.
Coming now to libellant’s contentions regarding permanent alimony and division of property, we shall first consider the contention with respect to division of property before we take up the contention about alimony. We do so because, as we construe R.L.H. 1955, § 324-37, it empowers thе judge to order a division of property independently and without regard to his action on alimony, but, in determining the amount of alimony, it requires the judge to take into account the resources of the wife, including the property apportioned to her in the divorce proceeding.
At the time of the divorce, libellee had under his control, at his residence and in storage at a commercial warehouse, a considerable amount of household furniture, silver, works of art, and other paraphernalia, which libellant thought was worth about f>50,000. We shall hereafter refer to all of such property as household paraphernalia.
As is usual with the belongings of any household, there was no clear demarcation of the ownership of the house
Libellant claimed all of the household paraphernalia as hers. The judge permitted libellee to keep the items which he needed for his use, valued at $15,000, and awarded the remainder to libellant. Neither libellant nor libellee questions such disposition of libellant’s claim.
Also, at the time of the divorce, libellee owned 1605 shares of Kahua Ranch, Limited; other corporate stocks of the value of $99,423; residence valued at $43,500, as to which there was an offsеtting liability of equal amount; and personal effects of modest value. Only the Kahua shares require our consideration. Libellee has not made any serious claim to a division of the other items.
With respect to the Kahua shares also, libellant’s objective does not appear to be to obtain a division of such shares in kind. At the hearings, she did not offer any persuasive evidence of her contribution to the acquisition of such shares nor did she advance any reason why such shares, or any part thereof, should be specifically awarded to her.
Libellee owned 1200 shares of Kahua at the time of the
The value of the Kahua shares to libellee by reason of his ownership of a majority of the outstanding shares of the corporation wоuld have been destroyed by an award of as few as 5 shares to libellant. Thus, an award of even a very small fraction of libellee’s holdings in Kahua to libellant would have caused a damage to libellee immeasurably greater than any benefit that libellant could have derived from such award. In view of such circumstance, the judge would not have been in error in refusing to order a division of the Kahua shares in kind even if libellant had established a meritorious claim to apportionment of such shares.
Libellant directed her major effort at the hearings not to proof of her right to a division of the Kahua shares in kind but to proof of the value of such shares at the time of the divorce. Libellee valued his holdings in Kahua at $160,500. Libellant asserted a value of $573,937.50. It is obvious that the object of libellant’s effort was to lay a basis for a substantial cash award as a property settlement in lieu of a division of the shares in kind.
We think that R.L.H. 1955, § 324-37, empowers the judge to make a cash award in lieu of division of рroperty in kind where a spouse establishes a meritorious claim but specific division is either impracticable or does not bring about a fair and equitable result.
Here, the record does not show that libellant established a meritorious claim to division of property other than household paraphernalia. Except as to household paraphernalia, it cannot be said from the evidence adduced at the hearings that libellant contributed any property of
Libellant owned considerably more property at the time of the divorce than at the time of the marriage. At the time of the marriage, her property consisted of $25,205.89 in bank deposits; a claim of $12,436.77 against her former husband for insurance adjustments; household paraphernalia which she valued at $25,587.04; and personal jewelry and effects of unspeсified value. During the marriage, she acquired additional jewelry and household paraphernalia. At the time of the divorce, she had bank deposits, traveler’s checks, United States Treasury bonds, and current credits which totaled $42,045.04; securities of the approximate value of $4,827; and personal jewelry of a market value of $52,925 and a replacement value of $83,140. The judge apportioned to her in the divorce proceeding household paraphernalia of the approximate value of $35,000.
Libellant argues that, although she might not have contributed directly to the acquisition or accumulation of libellee’s estate, other than household paraphernalia, she is entitled to a substantial cash award as a property settlement because she assisted in the conservation of such estate to the extent that she used her funds to pay the living expenses which libellee was bound to provide.
We see at least two difficulties in libellant’s argumеnt. First, it assumes that libellee was legally obligated to provide the entire sum which the parties expended for their living during the marriage. During the period of the marriage, libellant had cash receipts of $225,264.81 from sources not attributable to libellee, as follows: $138,490.05 from annuity; $82,004.42 as salaries, bonuses, and perquisites from Reader’s Digest; and $4,770.34 from dividends and stock sales. Libellant used the receipts to
We shall now turn to libellant’s contention regarding the periodic alimony awarded by the judge. Here, the question is whether the monthly sum of $600 which was ordered to be paid as periodic alimony was so inadequate that we can say that the judge abused his discretion in failing to order the payment of a larger monthly sum.
As we noted previously, libellant claimed at the hearings that she needed $1,813 per month, or $21,756 per year net after Federal and Territorial income taxes, to live in the manner to which she was accustomed during the marriage. She conceded that $2,400 of her income was applicable to her living expenses. Even with such concession, an alimony of at least $50,000 per year, or more than $4,000 per month, would have been required to provide libellant with a net sum of $21,756 after the payment of Federal and Territorial income taxes under the existing rates. But libellee’s income was considerably less than such required amount. Libellant figured libellee’s
From such total annual income of $30,000, libellee was required to pay alimony of $300 per month, or $3,600 per year, to his first wife. Under the supplemental decree entered in the instant case, he was required to pay alimony of $600 per month, or $7,200 per. year, to libellant. These payments would have left $19,200 before Federal and Territorial income taxes. The net balance left to libel-lee after the payment of such taxes would have been approximately $13,000.
At the time of the divorce, libellant had a total annual income of $15,875, including the alimony awarded in this divorce proceeding. Such income consisted of the following items: annuity, $7,875; interest, $600; dividends, $200; and alimony, $7,200. With respect to the annuity of $7,875, we reject as being without merit libellant’s argument that only $1,600 was pure income and the balance was return of wasting asset. If Federal and Territorial income taxes were deducted from such total annual income of $15,875, libellant would have had approximately $11,500 left for her living expenses.
In other words, the alimony of $600 per month, or $7,200 per year, added to her other income, provided libellant with a net sum of approximately $11,500 per year available for her living expenses as compared with a net sum of approximately $13,000 per year available to libellee. The amount of alimony whiсh was awarded to libellant was not a liberal allowance. We think it was on the low side. But, our function here is limited to a review for abuse, and considering all the circumstances as they appear in the record, we cannot say that the judge abused
Libellant based the amount of periodic alimony she claims on the scale of living of the parties during their marriage. The parties were married in 1938. At that time, libellee was president of Hawaiian Pineapple Company, Limited, and had an annual income of more than $125,000, of which approximately $70,000 was from salary and bonus and the balance was from dividends. His net worth was $941,000. The parties lived on a scale commensurate with libellee’s income. Three years later, libellee was let out as president of the company, and his income was drastically reduced. Thereafter, he suffered business losses in excess of $640,000. Nevertheless, the parties continued to live expensively to the time of the divorce. In the last yеars of the marriage, the expenditures for such living which were paid out of libellee’s funds exceeded his income.
It is frequently stated as a general proposition that a wife, who is divorced by reason of her husband’s misconduct, is entitled to live in the manner to which she was accustomed during the marriage and that the divorced husband is obligated to provide the funds required for such living. The statement is too broad to be true in all cases. The amount of alimony is to be determined upon a realistic appraisal of the situation of the parties at the time of the divorce. Such appraisal involves a consideration of the respective resources and revenues of the parties, their accustomed manner of living, and the manner of living which is appropriate on the basis of such resources and revenues. We think that normally the principal consideration in determining the amount of periodic alimony should be the respective income of the pаrties. There may be situations which require consideration of factors other than income in arriving at a just result, such as where a substantial portion of the capital of
Here we cannot say that libellee’s capital was not properly employed in income-producing enterprises and investments, nor can we say that libellee avoided the use of his personal talent to advantage in earning income. There is evidence that libellant was in poor health and was hospitalized immediately before the divorce, but the evidence was insufficient to establish libellant’s continuing future need for hospitalization and other medical expenses.
Libellant argues that thе judge should have made a larger award because, in addition to his actual income, libellee enjoyed “the possibility of prospective income of a very substantial nature.” She also argues that a larger award should have been made because of her precarious health which required frequent and lengthy hospitalization in the past. In answer to such argument, it suffices to say that they are based on conjecture. If the possibility of libellee’s prospective income or the concern about libellant’s need for future medical expenses materializes, it will be time enough for the judge to order appropriate relief upon such change of circumstance.
Libellant urged in her brief that the evidence in this case justified an award of a liberal alimony in gross as an alternative to periodic alimony and division of property. A short answer to such proposition is that the record does not show that it was presented to the circuit judge. Libellant specifically prayed for “a reasonable sum of money each month as permanent alimony” in her libel. Even if the proposition were presented to the judge, its rejection would not have constituted reversible error.
The supplemental decree of divorce appealed from is affirmed, except insofar as it denies temporary alimony, attorneys’ fee and fee and expenses of expert witness. The case is remanded to the circuit judge with direction to amend the decree (1) to make the payment of periodic alimony of $600 per month retroactive to June 30, 1955; (2) to allow the payment of the fee and expenses of Colin G-. Lennox; and (3) to award reasonable attorneys’ fees incurred by libellant in this proceeding after holding a hearing on the matter.